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FOREWORD 

This  volume  is  an  exact  photo-reproduction  of  an  original  copy  of 

John  W.  Houston's 
DELAWARE  REPORTS 

VOLUME  1 


As  a  copy  of  the  original  is  practically  unobtainable,  this  volume  is 
offered  to  enable  law  libraries  to  complete1  their  collection  of  Dela- 
ware Reports. 

The  edition  has  a  limited  printing. 

Buffalo,  N.  Y.  DENNIS  &  CO..  INC. 

January    1955 


REPORTS 


CASES    DECIDED 


SUPERIOR    COURT, 


AND    THE 


fljjflitrt  af  <&m\%  and  ^jjjjmIu, 


STATE  OE  DELAWARE. 


JOHN  W.  HOUSTON,  Associate  Judge. 


VOL.  I. 


PHIL  A  I)  E  L  P  II  I  A  : 

T.    &    J.    W.    J  O II X  SOX    &     CO. 

1HGG. 


KFP 

4? 

v.4, 


5  II  K  It  >t   K  V    .t    r  .).,    P  R  1  N  T  r.  I! 

I'  II  I   I,  Ul  E  I.   r  H  I  A 


TABLE   OF  CASES. 


A. 

Adkins  v.  Jester,     . 
Andrews  v.  Thompson,    . 
Arthurs,  Sharp  v.    . 

B. 

Bacon,  O'Neal  v. 
Bailey  v.  Wiggins, 
Bartholomew  r.  Edwards, 
(i  tt 

Baynard  &  Postlesr.  Harrity 

Bishop  v.  Carpenter, 

Bloxom  &  Jones,  State  use  o 
Deputy  r. 

Bonnewell,  Davis  v. 

Bonsall,  McKay  v.  . 

Boyce,  Windsor  v. 

Branson,  Hickman  &  Co.  r. 

Budd  r.  The  Union  Bank, 

Burcalow  r.  Trump, 

Burton's  Executor  r.  War- 
rington, 

Burton,  Morris  v.     . 

Burton,  Indorsee,  v.  liobinson, 

Burton,  liobinson  r. 

Buttell  and  Wife,  Rawlins  v. 

C. 

Callaway  v.  Ileum, 
( 'aim  v.   Warren, 
( 'ami'  'ii  r.  Wind-or, 
Cannon's  Administrator  r.  Ed- 
wards, . 
Cannon  r.  Horsey,  . 
Cannon,  Svdam  <\:   Keed  r. 


PAOE 

352 
523 

353 


215 
299 
17 
247 
200 
52(5 

440 
4G0 
520 
005 

429 
455 

303 

148 
213 

200 
540 
224 


Carpenter,  Bishop  v. 
Chase  r.  Jefferson,   . 
Chase,  Jefferson  t.  . 
Cleaver  v.  Ogle, 
Connoway  v.  Spicer's  Admit 

istratrix, 
Cordrey  r.  Cordrey, 
Crawford  r.  Elliott, 
Currey  v.  Davis, 
Custis    and    Wife   v.    Potter' 

Administrator,     . 

D. 

Davis  et  al.  r.  Rogers, 

Davis  v.  Rogers, 

Davis  r.  White, 

Davis's  Executor  i\  Rogers, 

Davis  r.  Bonnewell, 

Davis,  Currey  v. 

Day  and  Wife  v.  Messick, 

Delaware      Railroad      Co.      i 

Tharp, 
Dill,  Doc  d.  Harrington  ,-. 
Doe  (I.  Bright  r.  Stejihens, 
"      Jefferson  r.  11. .well, 
Bright  r   Stevens, 
Ingram  et  al.  r.  (iirar 
et  al., 
••       Hall  and  Wife  et  al.   i 


0d7 

Tunnel],    . 

320 

ISM 

-      Snort  et  al.  r.    l'r.tty- 

1  13 

man  et  al.. 
Cooper  r.  Town  si' ml  < 

334 

427 

al 

•  J  > » -  * 

440 

FlarririLCt'  >n    \   1  >i  11, 

398 

431 

Davis  r.  Vincent, 

410 

PAGE 

520 
257 
219 
453 

274 
209 
405 

598 

382 


44 

1*3 

228 
458 
400 
598 
328 

149 
398 
31 
178 
240 


IV 


TABLE  OF  CASES. 


E. 

Edwards,  Bartholomew  r. 

Edwards.  Cannon's  Adminis- 

tratoi  r. 
Elliott,  Crawford  r. 
Elzcy  r.  Elzey, 

F. 

Fairthorne  v.  Garden, 

Farmers'  Hank,  Logan  r. 

Fleming,  Tharp  v.  . 

Flinn  r.  Philadelphia,  Wil- 
mington, and  Baltimore 
Railroad  Co., 

Frank  v.  Frank's  Administ'r, 

Frank's  Administrator,  Wal- 
raven  r. 

Fromberger  r.  Karsnor, 

(}. 

Garden,  Fairthornc  v. 

Gem  mi  11,  Roe  r. 

Girard  et  al.,  Doe  ,/.  Ingram  et 
al.  >• 

Green,  Hall  v.  ... 

Green  Hill  Cemetery  Co..  Ste- 
phens v. 


PAOE 

17 
247 

427 
465 
308 


Howell,  Doe  d.  Jefferson  v. 
Hudson's     Administrators    v. 

Mcssick,        .         .         .         . 
Humphries  v.  Kitchens,  . 
Hutchinson    v.    Hutchinson's 

Executor,      .         .         .         . 


Jefferson  v.  Chase,  . 
''•'i     Jefferson,  Chase  r.  . 
•'•»  I  Jester,  Adkins  r. 
S80  I  Journev,  Smethurst  r. 


469 
245 


Karsner,  Fromberger  r. 


35 

300 


H. 


Hull  r.  Green, 

Hall.  Green  r.  ... 

Hazel. 'Niekerson   r. 

He;irn,  Callaway  r. 

Hieliman  &  Co.  r.  Branson,    . 

Hiekman,     MeColleys    use    of 

N\  arreii  r.     . 
1 1  i  r ■  •  1 1  - .  State  use  of   Day  and 

Wife    r 

Hit.  i, •ii-.  Humphries  r.  . 

Hot. -..n-  Kxecutors,  Kennard  r 

H..le..iiil..  Trustees  of  New  Ca>- 

tl>.  <  '"iimt \  '  '"ii i tn<. n  r. 
H..r--    and   Wife  r.    Hor-ey  s 

Exeeut'.r 

H.ir-.y.  Cat  ti"i 

Hos.  a  .     Kii.n    • 


Kennard  v.  Hobson's  Ex'ors,. 
|  Kearns   &    Pyle,    Mayor    and 
Council  of  Wilmington  v.  . 
King  r.  Phillips, 
;  Kinney,  Hosea  r.     . 
Kirby,  Waters  v.     . 
197 

'   \  L' 

,,_      Lcnderman     v.     Lenderman's 

Z ...         Executor,     .... 
o46 

Lewis    Spencer  r.     . 

...     Logan,  The  Farmers'  Bank  v. 


M. 

546     Marshall,  Vanjjhn  r. 
506  ••  ••  . 

17'!    Mayor   and    Council   of    Wil- 
5<>7         mington  r.  Kearns  &   Pyle. 
4_".t     MeColleys   use  of   Warren   r. 
Hickman.      .... 
234     McDowell  r.  Simpson  and  Wife 

McKay,  Bonsai  1  r.  . 
252      Mel-..n.   Keeords  r.   . 
526     Mes.-iek,    Hudson's    Admini-- 
3»i        trator  r. 

Me>M<-k,   Day  and  Wife  r. 
293  ••  State  Use  of  Messick's 

Administrator  r. 
4:;*     Milman  >■.  Slmekley. 
I  in     Moni-  r.   Burton.     . 
1  11      Morrow.   Waiters   r. 


PAOF 

178 

275 
526 

613 


219 
257 
352 
196 


290 
36 

302 
349 
141 
364 


52:1 

223 

35 


348 

604 

362 

2:14 
467 
520 


_  i  •) 
32H 


347 
IK 


TABLE  OF  CASES. 


N. 

Neal,  Obier  v.  . 

New  Castle  Common  v.  Ste- 
venson,        . 

New  Granada  Canal  Co.,  Vo- 
gl«  v 

Nickerson  v.  Hazel, 


PA  ■:> 

449 

451 

294 
170 


O. 

Obier  t>.  Neal,           .  .449 

Ogle,  Cleaver  v.       .  .         .     453 

O'Neal  v.  Bacon,  .         .     215 


Pettyjohn's  Executor  v.  Petty- 
john,       332 

Pettyjohn  v.  Bloxom,      .         .  594 
Philadelphia,  Wilmington,  and 
Baltimore     Railroad     Co., 

Flinn  v.                 .         .         .  469 

Phillips,  King  v.     .         .         .  349  j 
Potter's  Administrator,  Custis 

and  Wife  v.  382  ! 

Prettymanetal.,Doerf.  Short  v.  334 

R. 

Raughley,  Richardson  v.          .  501 

Rawlins  r.  Buttel  and  Wife,  .  22-1 

Records  v.  Melson, .         .          .  139 

Richardson  v.  Raughley,          .  501 

Robinson  r.  Burton,         .         .  ">4(> 

Robinson,  Burton,  Indorsee,!-.  200 

Rodney  et  al.,  Burton  t\  .          .  442 

Rogers,  Davis  et  al.  r.      .          .  44 

Davis  r.                .         .  18:; 

•'        Davis's  Executor  v.    .  458 


PAOI 

Spencer  v.  Lewis,  .  .  .  223 
Spicer's  Administratrix,  Con- 

naway  ......     274 

Stapleford  v.  White,  .  .  238 
State  use  of  Roe  v.  Gemmill,  9 
St&teexrel.  Wright  v.  Warren,  89 
State  use  of  Day  and  Wife  v. 

Hirons,  .  .         .252 

State  use  of  Messick's  Admin- 
istrator v.  Messick,  .  .  347 
State  use  of  Burton  v.  Rodney 

et  al., 442 

State  use  of  Deputy  v.  Bloxom 

&  Jones,  ....  446 
State    use    of     Richardson    v. 

Raughley,  .  .  .  .561 
State  use  of  Davis's  Executor 

v.  Rogers,  .  .  .  .569 
Stephens's   Executor  v.  Green 

Hill  Cemetery  Co.,       .         .       26 

Stephens,  Doe  d.  Bright  v.      .       31 

'•  .     240 


Tharp  v.  The  Delaware  Rail- 
road Co.,  .  .  .  .  149 
Tharp  et  al.  v.  Fleming,.  .  580 
Thompson,  Andrews  r.  .  .  522 
Townsendetal.,  Doe  d.  Cooper  v.  305 
Trump,  Burcalow  v.  .  .  303 
Tunnel,  Doe  d.  Hall  and  Wife 
et  al.  ?• 820 

U. 

Union  Bank,  Budd  et  al.  r.     .  455 

Union  Church  v.  Sanders,        .  100 


S. 


V. 


.      100    Vangeazel  >■.  Iliilvan 
.      .r>10     Vaughn  r.   Mar-hall. 


Sanders,  Union  Church 

Seal    >■.  Seal,       . 

Sharp  i',  Arthurs,    .          .  .  353  "                    '• 

Shoekley,  M  il  in  an  r.        .  .  441  Vaughan,   Young  v. 

SimpMin  and  Wife,  McDowell  v.  407  Vincent,  Doe  ,/.  Davis  v. 

Socum  >-.  The  State,          .  .  L'u4  Yoglc   r.   New  Granada   Canal 

Smethurst  r.  Journev,     .  .  190        Co -94 


348 
0(»4 
331 

110 


TABLE  OF  CASES. 


\V. 

Wiuhnnn,  Stockley  v. 

Walraven  r.  Frank's  Admin- 
istrator,        .... 

WalttTS  r    M<>rru\v, 

Warren,  Cann  r.     . 

Warren,  State  ex  rel.  Wright  v. 

Warrington,  Burton's  Execu- 
tor C 

Waters  r.  Kirby  et  al.,    . 
Watson  r.  Watson's  Executor, 
White,  Davis  v. 
White,  Stapleford  r. 


paoi    "Wiggins,  Bailey  v. 
-350    Windsor  r.  Boyce,  . 

Windsor,  Cannon  v. 

Woolman  &  Sullivan  r 
ley  &  Morris, 


355 


Zeb- 


188 
39 


Y. 


j.js  Young  v.  Vaughan, 

364 

209  Z- 

228  Zebley  &  Morris,  Woolman  & 

238        Sullivan  r 


PAGE 

299 
605 
143 

459 


331 


459 


The  following  Judges  composed  the  Courts  from  the  Spring 
of  1*55  to  the  Fall  of  1858,  the  period  -embraced  in  this  vol- 
ume of  Reports  : 

Hon.   Kensey  Johns,  Jr.,  Chancellor. 

Hon.  Samuel  M.  Harrington,  Chief  Justice ;   appointed  April  3d, 

1855. 
Hon.  John  J.  Milligan,  Associate  Judge. 
Hon.  Edward  Wootten,  Associate  Judge. 
Hon.  John  W.  Houston,  Associate  Judge;  appointed  May  4th,  1855. 


Hon.   Kensey  Johns,  Jr.,  Chancellor,  died  March  28th,  1857. 

Hon.  Samuel  M.   Harrington  was  appointed  Chancellor,  Mpy  4th, 

1857. 
Hon.  Edward  W.  Gilpin  was  appointed  Chief  Justice,  May  6th,  1857. 


George   1\   Fisher,   Esq.,  Attorney-General. 


SUPERIOR  COURT. 

SPRING   SESSIONS. 
18  5  5. 


State  for  the  Use  of  David  Roe  v.  David  W.  Gemmill. 

The  sheriff  is  bound  to  levy  an  execution  with  due  diligence  and  without 
any  delay  prejudicial  to  the  interests  of  the  plaintiff.  What  is  a  rea- 
sonable time  for  this  purpose  is  a  question  of  fact  for  the  jury  to  decide 
under  the  circumstances  of  the  case  and  the  direction  of  the  court. 

He  is  also  bound  to  levy  on  all  the  goods  of  the  defendant  in  his  baili- 
wick ;  and  the  fact  that  the  goods  had  all  been  levied  on  by  virtue  of 
prior  executions,  is  no  excuse  for  neglecting  to  levy  it  in  proper  time. 
Whether  a  subsequent  levy  on  goods  before  taken  in  execution  would 
be  available,  is  a  question  which  does  not  affect  the  duty  of  the  sheriff 
in  this  respect. 

The  execution  being  issued  and  delivered  to  the  sheriff,  no  further  orders 
are  necessary  to  lix  his  liability,  or  that  of  his  sureties,  if  he  neglects  to 
do' his  duty  and  loss  to  the  plaintiff  is  the  consequence  of  such  neglect. 
But,  at  the  same  time,  though  the  writ  is  the  mandate  of  the  State  to 
the  sheriff,  it  is  the  process  of  the  plaintiff,  and  subject  to  his  control  ; 
and  he  may,  by  contrary  order.-,  stay  the  execution,  and  dispense  with 
the  use  of  diligence  on  the  part  of  the  sheriff;  and,  for  this  purpose, 
verbal  orders  are  sufficient,  and  need  not  be  in  writing. 

Peaches  on  the  trees  are  not  such  goods  and  chattels  as  may  be  taken  in 
execution  on  a  fieri  facias ;  but,  after  they  are  gathered,  this  maybe 
■  lone.       Whether   from    their    perishable   nature,   and    the   necessity   of 

s] lily  sending  them  to   market,  and  the  notice  and  delay  necessarily 

preceding  a  sale  by  the  sheriff,  such  a  levy  would  avail  the  plaintiff  in 
the  execution  anything,  it  will  be  for  tin- jury  to  decide. 

This  was  an  action  of  debt  on  the  official   recognizance 
oi'  George   LMatt,  formerly  sheriff  of  New  Castle   County, 


10  SUPERIOR  COURT. 

against  the  defendant,  one  of  his  sureties.     Plea,  perform- 
ance, and  replication,  assigning  breaches,  &c. 

The  plaintiff,  David  Roe,  had  a  judgment  in  the  Superior 
Court  for  the  County  against  Simon  Spearman,  payable 
by  instalments:  one-third  on  the  1st  of  April,  184G ;  one- 
third  on  the  1st  of  April,  1847;  and  the  remainder  on  the 
1st  of  April,  1848  ;  upon  which  a.  fieri  facias  had  been  issued 
to  Jacob  Caulk,  the  preceding  sheriff,  returnable  to  May 
Term,  1846,  and  which  had  been  levied  on  the  goods  of 
Spearman,  and  stayed  by  order  of  the  plaintiff,  on  part 
payment  of  the  judgment  by  Spearman,  and  his  entering 
into  bond  to  the  plaintiff  for  the  safe  keeping  and  forth- 
coming of  the  property  which  continued  in  his  possession. 
Afterwards  a  further  writ  of  ficii  facias  was  issued  upon 
the  judgment  to  George  Piatt,  sheriff,  on  the  14th  of  July, 
1847;  and  on  the  same  day  a  venditioni  exponas  was  sued 
out  and  placed  in  his  hands,  commanding  him  to  sell  the 
goods  levied  on  in  the  first  execution  ;  to  the  first  of  which 
he  made  return  at  the  November  Term,  1847,  "  Goods 
levied  on,  October  16,  1847,  as  per  inquisition,  &c. ;"  and 
to  the  latter  he  made  return  at  the  same  term  as  follows  : 
"  Within  goods  advertised  to  be  sold  October  16,  1847, 
and  on  that  day  not  to  be  found  within  my  bailiwick."' 
It  was  proved  that  Spearman  had  driven  away  from  a 
farm  of  his  in  Xew  Castle  County  to  Philadelphia,  in  the 
latter  part  of  September  of  that  year,  a  huge  amount  of 
live  stock,  consisting  of  cows,  oxen,  mules,  and  horses,  to 
the  value  of  seven  hundred  dollars;  and  had  gathered  and 
sold  from  his  orchard  on  the  farm  between  three  and  four 
thousand  dollars'  worth  of  peaches  during  the  months  of 
August  and  September,  the  same  season.  The  plaintiff, 
it  appeared,  resided  out  of  the  State,  and  had  no  attorney 
or  agent  in  it  at  the  time  to  attend  to  his  interests,  or  give 
directions  to  the  sheriff  in  regard  to  the  matter.  The 
third  instalment  of  the  judgment  was  not  due  when  the 
last  execution  was  issued,  and  the  sum  demanded  in  the 
action  was  the  amount  of  the  two  first  instalments  with 
interest. 


ROE  v.  GEMMILL.  11 


Rodney,  for  defendant,  offered  in  evidence  the  former 
execution  issued  on  the  judgment  to  Sheriff' Caulk. 

Objected  to  by  .7.  A.  Bayard,  because  it  was  not  evidence 
in  the  case,  unless  it  should  be  shown  that  there  were 
instructions  from  the  plaintiff  to  the  sheriff'  in  regard  to  it 
and  the  property  seized  under  it,  which  would  have  the 
effect  to  discharge  the  succeeding  sheriff"  from  his  liability 
on  account  of  it  in  this  case. 

Rodney :  This  was  what  he  proposed  to  do,  and  to  follow 
up  the  present  evidence  with  further  proof  that  the  execu- 
tion was  stayed  in  the  hands  of  Sheriff'  Caulk  by  the  orders 
of  the  plaintiff,  and  that  he  took  a  bond  from  Spearman 
for  the  forthcoming  of  the  goods  levied  on,  and  that  the 
property  remained  by  his  consent  with  Spearman ;  and 
that,  afterwards,  the  second  execution  was  issued  to  Piatt, 
the  succeeding  sheriff";  and  on  the  same  day  a  writ  of  ven- 
ditioni exponas  came  to  his  hands  to  sell  these  goods  pre- 
viously taken  in  execution,  and  it  had  already  been  proved 
what  had  become  of  them. 

J.  A.  Bayard:  Conceding,  for  the  sake  of  argument, 
that  Sheriff'  Piatt  had  been  guilty  of  no  laches,  or  neglect 
in  regard  to  the  venditioni,  it  by  no  means  followed  that  he 
had  been  guilty  of  no  negligence  on  the  fieri  facias  which 
was  issued  to  him.  lie  had  been  guilty,  however,  of  neg- 
ligence on  both  writs. 

By  the  Court:  The  evidence  is  admissible.,  subject  to 
direction  as  to  the  legal  effect  and  sufficiency  of  it. 

The  defendant  then  offered  in  evidence  the  deposition 
of  a  witness  taken  out  of  the  State,  and  who  had  been  the 
deputy  of  Caulk  whilst  sheriff,  to  [trove  that  the  first  exe- 
cution had  been  stayed  by  the  directions  oi'  the  plaintiff", 
contained  in  certain  letters  addressed  by  him  to  that 
officer,  and  for  which  diligent  search  had  been   made  by 


12  SUPERIOR  COURT. 

the  witness  among  the  papers  of  the  sheriff'  without  finding 
them. 

Mr.  Bayard  objected  to  the  admissibility  of  the  deposi- 
tion. In  order  to  excuse  the  sheriff  for  the  non-execution 
of  the  writ,  if  he  relied  on  instructions  from  the  plaintiff 
for  that  purpose,  it  should  be  shown  that  they  were  in 
writing,  and,  if  lost,  the  whole  of  the  letters,  or,  at  least, 
the  entire  substance  of  them,  and  not  merely  parts  or  por- 
tions of  them,  should  be  stated  by  the  witness.  Besides, 
the  loss  of  the  letters  had  not  been  sufficiently  shown  to 
admit  secondary  evidence  of  their  contents;  and,  as  the 
deponent  had  been  the  deputy  of  the  sheriff*  at  the  time,  he 
was  an  incompetent  witness  without  a  release. 

By  the  (hurt:  It  did  not  appear  that  the  deputy  was  in 
any  way  chargeable  with  the  ne^liij-enee  alleged  in  this 
ease:  and  if  there  had  been  any  negligence  in  the  execu- 
tion of  the  first  fieri  facias  by  the  preceding  sheriff'  or  his 
deputy,  it  was  not  the  ground  of  action  in  the  case  before 
the  court,  winch  was  for  alleged  negligence  on  the  part 
of  Piatt,  the  succeeding  sheriff',  in  failing  to  execute  the 
second  fieri  facias.  He  was,  therefore,  a  competent  witness 
without  release.  As  to  verbal  orders,  or  parol  instructions 
from  the  plaintiff",  in  an  execution  to  the  sheriff'  directing 
him  to  stay  it,  they  are  sufficient  to  exonerate  him  from 
the  charge  of  negligence  on  that  account,  and  need  not  be 
in  writing.  The  search  for  the  letters,  ami  the  proof  of 
their  loss  (the  deponent  stating  that  he  had  made  diligent 
search  for  them  among  the  sheriff's  papers,  hut  could  not 
find  them),  was  sufficient  to  authorize  the  admission  of  his 
evidence  as  to  the  contents  of  them  or  their  substance. 

The  further  proof  and  facts  in  the  case,  and  the  grounds 
on  which  the  action  was  resisted  by  the  counsel  for  the 
defence,  will  sufficiently  appear  from  the  charge  of  the 
court. 


ROE  v.  GEMMILL.  13 


The  Court.  Harrington,  Chief  Justice,  charged  the  jury: 
This  was  an  action  against  the  surety  of  the  late  Sheriff 
Piatt,  for  his  negligence  in  executing  a  writ  of  Jitri  facias, 
at  the  suit  of  David  Roe,  against  Simon  Spearman,  which 
was  issued  and  placed  in  the  sheriff's  hands  for  collection. 

It  appeared,  by  the  sheriff's  recognizance,  that  the  de- 
fendant, David  W.  Gemmill,  became  one  of  his  sureties, 
and  bound  himself,  by  the  condition  of  that  recognizance, 
for  the  faithful  execution  by  the  sheriff  of  his  official  duties. 
One  of  the  obligations  of  this  recognizance  is,  that  the 
sheriff  shall  duly  execute  process  to  him  directed  ;  and 
what  is  the  due  execution  of  process  was  explained  by  the 
court  in  Janvier  v.  Vandever,  3  Ilarr.  Rep.  29.  In  that 
case  on  this  subject  the,  court  remarked,  "In  our  view  the 
question  of  diligence  is  for  the  jury  to  decide,  under  the 
direction  of  the  court,  upon  the  circumstances  of  each  case. 
The  writ  of  execution  commands  the  sheriff  to  levy  and 
make  the  money,  and  to  have  it  at  the  court  next  ensuing. 
Ordinarily,  if  he  does  this  he  performs  his  duty,  without 
reference  to  the  time  of  sale;  but  if  he  does  not  produce 
the  money  at  court,  it  becomes  important  to  inquire 
whether  he  has  performed  his  duty  in  the  meantime ; 
whether  he  has  executed  the  writ  according  to  his  duty 
and  the  terms  of  his  recognizance,  without  delay.  Has  he 
made  his  levy  in  due  time?  What  is  due  time  in  reference 
to  the  levy  ?  Has  lie  the  whole  time  previous  to  the  return 
of  the  writ  to  make  the  levy  in  ?  It  is  admitted  that  he 
has  not,  and  yet  it  is  contended  that  he  has  the  whole  time 
in  reference  to  a  sale.  Jn  our  opinion,  the  rule  as  to  both 
is  the  same;  it  must  be  done  in  reasonable  time.  Of  course 
much  greater  activity  must  be  used  by  the  sheriff  in  making 
the  levy  than  in  making  a  sale,  tor  this  is  reasonable;  and 
in  most  eases  it  would  not  be  unreasonable  to  defer  the 
sale  for  the  longest  period  before  the  return  day  of  the 
writ  ;  but  it",  in  any  particular  ease,  such  a  delay  would  be 
prejudicial  and  injurious  to  the  plaintiff,  it  is  unreasonable, 
and  a  violation  of  the  sluii  tl"*s  duty." 

It  appeared,   by  the   evidence,  that    David    Roc  having 


14  SUPERIOR  COURT. 

obtained  a  judgment  against  one  Simon  Spearman,  payable 
in  three  instalments,  two  of  which  were  due  on  the  14th 
of  July,  1847,  issued  an  execution,  and  delivered  it  to 
Sheriff  Piatt  two  days  afterwards,  which  was  levied  on  the 
8th  of  October  of  that  year,  and  upon  a  sale  of  the  pro- 
perty then  levied  on,  the  money  raised  on  that  levy  was 
not  sufficient  to  satisfy  the  execution.  It  was  alleged  by 
the  plaintiff  that,  at  the  time  this  execution  was  placed  in 
the  sheriff's  hands,  there  were  goods  of  the  defendant 
within  his  bailiwick,  that  is,  within  this  county,  which 
might  and  ought  to  have  been  levied  on  by  him,  sufficient 
to  pay  this  execution;  and  that  the  delay  on  the  part  of 
the  sheriff  in  making  the  levy  was  an  official  delinquency, 
for  which  he  and  his  sureties  are  responsible,  and  which 
renders  them  liable  to  pay  the  amount  of  the  execution. 

Recurring  to  the  evidence  in  the  case,  and  applying  to 
that  evidence  the  principles  which  have  been  stated  by  the 
court  in  reference  to  a  sheriff's  obligation,  the  jury  will 
determine  whether  the  sheriff  did  levy  and  execute  this 
writ  according  to  its  command  and  his  duty;  and  whether, 
if  he  had  so  executed  it,  he  might  have  levied  it  on  some 
property  of  Simon  Spearman  from  which  he  might  have 
made  the  money  he  was  commanded  to  make,  or  some 
part  of  it,  in  satisfaction  of  the  plaintiff's  judgment  and 
execution.  One  of  the  witnesses,  Michael  Cooper,  has 
testified  to  certain  cattle,  and  horses,  and  mules,  from 
which  the  plaintiff  contends  that  this  money  could  have 
been  made  by  due  diligence;  and  another  witness  refers 
to  a  peach  crop  which  was  grown  and  gathered  for  Spear- 
man while  this  writ  was  in  the  sheriff's  hands,  but  which 
the  plaintiff  claims  he  was  bound  to  have  levied  on  for  the 
same  purpose. 

The  defendant,  on  the  other  hand,  insists  that  these  cattle 
and  the  other  property  proved  by  Cooper  was  levied  upon 
and  sold  (or  a  part  of  it)  by  virtue  of  other  and  prior  exe- 
cutions against  Spearman,  and  a  levy  of  Roe's  execution 
upon  it  would  therefore  have  been  useless:  that  the  peach 
crop  while  growing  was  not  liable  to  be  seized  as  personal 


KOE  v.  GEMMILL.  15 

chattels,  and  would  have  been  unproductive  if  levied  on 
after  the  peaches  were  gathered,  by  reason  of  their  perish- 
able character;  and  that,  in  reference  to  the  delay  in 
making  the  levy,  that  it  was  authorized,  or,  at  least,  sanc- 
tioned by  the  plaintiff  himself,  by  direct  orders  to  the  pre- 
ceding sheriff  to  delay  the  service,  and  by  a  failure  to  give 
orders  to  Piatt  for  the  prosecution  of  this  writ. 

The  plaintiff  Roe,  by  issuing  his  execution  and  delivering 
it  to  the  sheriff,  commanded  its  execution ;  or,  rather,  he 
brought  out  the  State's  command  to  the  sheriff  to  levy  and 
make  the  amount  from  the  goods  of  the  defendant  Spear- 
man, if  such  goods  could  be  found  within  his  bailiwick,  by 
the  use  of  reasonable  diligence  and  without  delay.  No 
further  orders  were  necessary  to  fix  the  sheriff's  liability 
(and  his  liability  is  the  liability  of  the  surety),  if  he  neg- 
lected to  do  his  duty,  and  loss  to  the  plaintiff  was  a  con- 
sequence of  such  neglect.  But  at  the  same  time  the  writ, 
though  it  bore  the  State's  command  to  the  sheriff,  was  the 
process  of  the  plaintiff  and  under  his  control;  and  if  he 
pleased  to  give  contrary  orders  to  the  sheriff  to  stay  the 
execution  of  that  process,  and  to  dispense  with  the  use  of 
diligence  by  the  sheriff,  and  such  orders  were  proved  to 
the  satisfaction  of  the  jury,  he  had  a  right  to  do  so,  and  he 
would  not  thou  be  liable  as  for  a  neglect  of  duty.  Or  if 
no  property  had  been  shown  to  have  been  in  this  county 
belonging  to  Spearman  upon  which  the  sheriff  could  have 
levied  this  execution,  and  made  the  money,  or  some  part 
of  it,  then,  though  the  delay  might  have  been  under  other 
circumstances  negligence,  it  would  not  be  a  ground  for 
official  liability  on  the  part  of  the  sheriff  or  his  sureties. 

The  fact  that  Spearman's  property  was  all  levied  on  by 
virtue  of  prior  executions,  is  not  of  itself  an  excuse  for 
not  making  the  levy  of  the  plaintiff's  execution  upon  it. 
Whether  such  a  levy  on  goods  before  taken  in  execution 
would  be  available  or  not,  is  one  thing;  but  the  sheriff's 
duty  as  to  the  levy  is  another,  and  it  requires  him  to  levy 
on  all  the  goods  and  chattels  of  the  defendant  that  might 
be  found  within  his  bailiwick. 


16  SUPERIOR  COURT. 

Not  so  of  the  peaches,  however,  while  on  the  trees  and 
connected  with  the  freehold.  In  that  condition  they  are 
not  such  goods  and  chattels  as  are  liable  so  to  be  taken  in 
execution  on  a  writ  of  fieri  facias  ;  but  after  they  were  de- 
tached and  gathered  they  might  be  levied  on.  Whether 
from  their  perishable  nature,  and  the  necessity  of  trans- 
mitting them  immediately  to  market,  and  the  notice  re- 
quired by  law  before  the  sheriff  could  sell,  such  a  levy  by 
the  sheriff  could  avail  the  plaintiff  in  such  execution  any- 
thing, it  will  be  for  the  jury  to  decide. 

On  the  whole  case  it  will  be  for  the  jury  to  say  whether 
the  sheriff  did  his  duty  in  the  execution  of  this  writ;  and, 
if  he  did  not,  whether  injury  and  loss  resulted  to  the  plain- 
tiff from  such  negligence.  If  so,  the  defendant,  as  his 
surety,  is  liable. 

In  regard  to  the  amount  of  the  plaintiff's  claim,  the  court 
are  of  opinion  that  the  sheriff  could  not  have  levied  under 
this  execution  more  than  two-thirds  of  the  principal  sum 
with  interest  and  costs;  that  is,  the  two  instalments  which 
were  due  at  the  time  the  execution  issued.  The  amount 
of  Roe's  judgment  is  $400  ;  payable,  one-third,  1st  of  April, 
184(5;  one  third,  1st  of  April,  1847;  one-third,  1st  of  April, 
1848 ;  with  interest  from  April  12, 1844,  to  the  close  of  the 
November  Term,  1847.  If  this  amount  was  lost  to  the 
plaintiff  by  any  negligence  of  the  sheriff,  which  is  not  ex- 
cused, these  two  instalments,  with  interest  upon  them, 
would  be  the  amount  of  your  verdict.  If,  on  the  contrary, 
you  are  not  satisfied  by  the  evidence  that  the  sheriff  was 
guilty  of  negligence,  or  could  have,  by  any  reasonable  dili- 
gence, in  the  execution  of  this  process,  have  made  the 
money,  or  some  part  of  it,  the  verdict  should  be  for  the 
defendant. 

Plaintiff  had  a  verdict. 

Wolfe  and  .1,  A.  Bayard,  for  plaintiff. 

Rodney,  for  defendant. 


BARTHOLOMEW  v.  EDWARDS.  17 


George  Bartholomew  v.  Edward  Edwards. 

Exclusive  possession  is  sufficient  to  maintain  trespass  q.  c.f.  against  one 
entering  without  license,  or  a  legal  title. 

In  a  case  of  common  possession  by  two  or  more  persons,  the  law  adjudges 
the  rightful  possession  to  him  who  has  the  legal  title;  and  no  length  of 
holding  in  such  case  can  give  title  by  posession,  against  such  legal  title. 

What  kind  of  possession  will  give  title  to  real  estate,  depends  on  the 
nature  and  condition  of  the  property  itself.  An  actual  inclosure  is  the 
most  obvious  proof  of  possession,  but  it  is  not  indispensably  necessary  for 
such  purpose:  cutting  wood,  or  grass,  or  even  the  pasturing  of  cattle 
repeatedly  and  as  a  matter  of  exclusive  right,  upon  uninclosed  land,  is 
evidence  of  possession,  and  if  exclusive  and  adverse  in  their  character 
to  the  rights  of  all  others,  and  continuous  for  twenty  years,  will  confer 
an  absolute  title  by  possession  merely. 

No  act,  however,  which  does  not  amount  in  itself,  to  an  assertion  of  right 
to  the  soil,  can  be  evidence  of  possession  of  the  soil.  Thus  the  use  of 
water  for  a  mill,  or  any  other  privilege  connected  with  the  use  of  the 
water  simply,  is  not  of  itself  alone,  evidence  of  title  to  the  land  cov- 
ered with  it ;  because  the  right  to  use  the  water  for  such  purposes,  may 
well  be  in  one,  while  the  title  and  possession  of  the  land  covered  with 
the  water,  subject  to  that  easement,  or  privilege,  may  remain  in  another 
person. 

If  a  deed  admitted  in  evidence,  recites  another  deed  as  duly  recorded,  it 
will  not  be  necessary  to  produce  the  original,  nor  the  record  of  the 
recited  deed,  nor  to  account  for  the  absence  of  it,  to  make  the  recital  of 
it  evidence,  with  whatever  weight  its  connection  with  the  other  proof 
in  the  case  may  give  it. 

The  words  "together  with  all  and  singular  the  mill,  mill-dam,  races, 
water-courses  and  other  the  appurtenances,1 '  contained  in  a  deed  for  mill 
property,  will  not  convey  the  bed  of  the  mill-pond,  or  the  land  covered 
with  the  water  of  it. 

This  was  an  action  of  trespass  quare  clauscm  /regit,  and 
the  trespass  complained  of  was  for  breaking  and  entering 
the  close  of  the  plaintiff,  which  had  formerly  been  a  por- 
tion of  the  bed  or  bottom  of  an  old  mill-pond  (now  gone 
down),  and  erecting  an  hydraulic  ram  thereon.  Both  par- 
ties asserted  title  and  laid  claim  by  possession  to  the  locus 
in  (pi.o ;  and  it  appeared  in  evidence,  that  the  dam  and 
pond  which  had  been  down  for  many  years,  laid  uninclosed 
between  the  lands  of  the  plaintiff  and  defendant ;   but  the 


18  SUPERIOR  COURT. 

plaintiff  alone  had  pastured  and  mowed  upon  it,  which  was 
the  only  use  made  of  it,  except  occasionally  to  cut  ice  on  it, 
when  flooded  and  frozen  over,  for  sale ;  a  right  which  it 
was  proved,  both  had  claimed  and  exercised.  The  plain- 
tiff asserted  his  title  and  possession  to  the  whole  of  the  bed 
of  the  pond  to  the  upland  on  either  side,  whilst  the  de- 
fendant claimed  that  the  thread  of  the  stream  flowing 
through  it  was  the  division  line  between  them,  and  proved 
that  the  alleged  trespass  was  altogether  on  his  side  of  it. 
In  adducing  the  legal  title  of  the  plaintiff  to  the  premises, 
much  stress  was  laid  on  a  lost  deed,  which  was  proved  to 
have  been  in  his  possession  some  ten  years  previously  by 
sundry  witnesses,  from  one  Grantham  to  Moore,  an  early 
grantor,  under  whom  he  claimed  title,  for  the  mill,  mill- 
seat,  and  land  covered  by  the  water  of  the  pond,  and  also 
on  the  fact  that  a  subsequent  deed  offered  in  evidence  on 
his  behalf  from  Moore  to  one  Caldwell,  an  intermediate 
owner  of  his  estate,  contained  a  recital  of  another  deed, 
not  produced,  to  Moore  from  one  "William  Scott  for  four 
acres  of  the  adjoining  land  in  the  following  words:  "to- 
gether with  all  and  singular  the  mill,  house,  mill-dam, 
races,  flood-gates,  mill-wheels,  stones,  hoppers,  bolting 
chests  and  cloths,  water,  water-courses,  and  other  the  ap- 
purtenances;" but  neither  the  contents  of  the  lost  deed,  nor 
its  formal  execution,  nor  the  names  of  the  parties  to  it,  were 
distinctly  ascertained,  or  defined  by  the  witnesses  who  had 
seen  it.  On  behalf  of  the  defendant  it  was  proved  in  addition 
to  the  facts  already  stated,  that  he  had,  at  the  November 
Term  of  the  Court,  1845,  obtained  a  commission  under  the 
provision  of  the  statute,  for  marking  and  bounding  his  land 
according  to  its  true  original  location,  on  which  the  com- 
missioners had  duly  ascertained  and  fixed  the  thread  of  the 
stream  through  the  bed  of  the  pond,  as  the  true  division 
line  between  him  and  the  plaintiff,  and  that  the  same  was 
afterwards  duly  certified,  returned,  approved  and  recorded 
at  the  ensuing  term  of  the  Court;  and  on  which  he  relied 
to  establish  that  as  the  true  and  lawful  boundary  between 
them.     The  present  suit,  however,  had  been  instituted  by 


BARTHOLOMEW  v.  EDWARDS.  19 

the  plaintiff  within  seven  years  after  the  return  of  the  com- 
mission. 

J.  A.  Bayard:  For  defendant.  Trespass  will  lie  on  an 
exclusive  possession.  But  in  this  case,  the  alleged  trespass 
was  committed  in  1852 ;  and  the  locus  in  quo  had  been  ad- 
judicated to  the  defendant  prior  to  that  time,  by  the  commis- 
sioners to  mark  and  bound  his  lands  under  the  order  of 
the  Court,  and  the  plaintiff  was  bound  under  the  act  of 
Assembly  to  contest  that  adjudication  by  an  action  at  law. 
That  adjudication  was  to  be  considered  conclusive  as  to 
the  boundaries  established  under  it,  and  of  the  holding  of 
the  parties  according  to  them,  and  the  plaintiff' to  avoid  the 
effect  of  it,  must  show  a  legal  title  to  the  locus  in  quo,  and 
could  not  rely  on  possession  merely;  because  it  was  a  ju- 
dicial decision  by  a  competent  tribunal  upon  theimmediate 
question  in  controversy  between  the  parties,  and  when  ap- 
proved and  recorded,  although  not  absolutely  conclusive 
until  after  the  lapse  of  seven  years,  yet  as  a  judicial  deci- 
sion on  the  question  of  boundary,  and  from  the  date  of  its 
approval  by  the  Court,  it  would  have  the  effect,  and  even  a 
greater  effect  than  a  verdict  in  ejectment,  and  would  change 
and  transfer  the  possession  and  constitute  the  holding  ac- 
cording to  the  division  line  as  ascertained  and  fixed  by  the 
commissioners.  That  the  boundary  thus  established  must 
prevail  against  him,  unless  the  plaintiff  had  shown  that 
the  legal  title  was  in  him,  either  by  the  paper  title  which 
he  had  adduced,  or  by  uninterrupted,  adverse  and  exclu- 
sive possession  for  twenty  years  of  the  particular  place  in 
which  the  trespass  complained  of  was  committed.  In  the 
next  place,  was  the  recital  in  the  deed  from  Moore  to  Cald- 
well of  the  deed  from  Scott  to  Patterson  and  Moore,  evi- 
dence of  the  contents  of  the  deed  recited,  and  can  the 
plaintiff"  give  the  recital  in  evidence,  since  the  recital  states 
that  the  deed  recited  is  on  record,  without  producing  that 
deed, or  the  record  o\'  it.  which  had  not  been  done?  And 
were  the  terms  employed  in  that  deed  according  to  the 
recital,  sufficient  to  convey  the   land  formerly  covered  by 


20  SUPERIOR  COURT. 


the  water  of  the  pond,  those  words  being ii  together  with  all 
and  singular,  the  mill,  house,  mill-dam,  races,  flood-gates, 
mill-wheels,  stones,  hoppers,  bolting  chests  and  cloths, 
waters,  water-courses,  and  other  the  appurtenances?" 
None  of  the  terms  there  used,  could  convey  the  land  of  the 
pond,  or  the  soil  covered  by  the  waters  of  it ;  and  it  could 
not  pass  simply  as  appurtenant  to  the  mill.  The  water  and 
water  privileges  might  pass  as  appurtenant  to  the  mill; 
but  the  land  could  Jiot. 

The  evidence  of  the  loss  of  the  deed  spoken  of  by  sev- 
eral witnesses,  was  not  sufficient,  because  there  was  no 
proof  that  a  proper  search  had  been  made  for  it.  Besides, 
the  evidence  of  its  existence  as  a  deed  prior  to  its  loss,  was 
altogether  insufficient;  because  it  should  be  shown  that  it 
was  duly  executed  and  was  a  valid  and  subsisting  deed  at 
the  time  of  its  loss  ;  the  parties  to  it,  the  premises  embraced 
in  it,  the  estate  conveyed  by  it,  whether  for  a  term  of  years, 
for  life,  in  tail,  or  in  fee  :  the  date  and  contents  of  it  gen- 
erally should  be  shown,  before  the  plaintiff  could  be  al- 
lowed to  make  any  use  of  it  for  the  purpose  of  establishing 
his  title  to  the  land  in  dispute.  But  on  each  and- all  of 
these  matters,  the  witnesses  examined  had  disclosed  noth- 
ing, absolutely  nothing — not  even  the  names  of  the  parties 
to  the  indenture  with  any  certainty  or  precision,  except 
that  it  was  for  land  covered  by  water,  and  was  executed 
previous  to  the  year  1800. 

"Where  a  party  claims  by  possession  merely,  lie  must 
provean  actual  possession  by  metes  and  bounds, and  of  every 
part  of  the  land  claimed  by  him.  But  the  possession  of 
the  land  could  not  be  acquired  by  the  right  to  the  use  of 
the  water,  with  which  it  was  overflowed,  because  such  a 
possession  might  lie  perfectly  consistent  with  the  right  of 
the  party  having  the  legal  title  to  the  land.  And,  unless 
the  plaintiff  had  shown  that  he  hail  mowed  and  pastured 
on  the  particular  spot  on  which  the  hydraulic  rani  was 
erected  by  the  defendant,  exclusively  and  uninterruptedly, 
for  a  period  of  twenty  years  before  the  commencement  of 
the  action,  he  was  not  entitled  to  recover. 


BARTHOLOMEW  v.  EDWARDS.  21 

Rodney  :  For  the  plaintiff,  in  reply.  The  marking  and 
bounding  of  the  premises  by  the  commissioners,  was  only 
an  ex  parte  proceeding,  and  could  conclude  nothing  until 
after  the  seven  years  had  elapsed  without  action ;  and  be- 
sides, it  could  have  no  effect  by  the  terms  of  the  statute,  as 
against  an  adverse  claimant,  so  long  as  he  continued  in  pos- 
session of  the  land  in  dispute.  And  even  admitting  that 
the  plaintiff  and  those  under  whom  he  claimed,  had  origi- 
nally but  an  easement,  or  a  right  merely  to  flood  the  land 
with  water  for  the  use  of  the  mill,  still  it  had  been  proved 
that  after  the  dam  and  pond  had  been  suffered  to  go  down, 
the  defendant  was  in  possession  of  the  bed  of  the  stream 
and  the  locus  in  quo  under  color  and  claim  of  title  to  it,  the 
deed  of  Kay  to  Moore,  and  from  Moore  to  Gross,  the  former 
executed  in  1828  and  the  latter  in  1831,  from  whom  the 
plaintiff'  derived  his  title  of  that  date,  being  for  "  146  acres 
of  land  and  land  covered  with  water ;"  and  it  was  therefore 
incumbent  on  the  defendant  to  deduce  a  clear  legal  title  to 
the  premises  to  defeat  the  present  action.  As  to  what 
would  pass  under  a  deed  as  appurtenant  to  a  mill,  it  had 
been  held  that  the  grant  of  a  mill  with  the  appurtenances,  will 
pass  both  the  water  and  the  piece  of  land  used  in  connection 
with  the  mill;  also  the  water  privileges  and  the  use  of  a 
head  of  water  and  race-way  connected  with  and  necessary 
to  the  mill.  The  mill  includes  the  site,  dam  and  other 
things  annexed  to  the  freehold  and  necessary  to  its  enjoy- 
ment.    2  Hill.  Abr.  139,140. 

The  words  contained  in  the  recited  deed,  which  could 
not  be  produced,  would  convey  the  land  covered  by  the 
water  of  the  pond  as  appurtenant  to  the  mill;  and  the  re- 
cital of  those  words  in  the  deed  from  Moore  to  Caldwell  is 
evidence  of  the  deed  recited,  though  now  lost  and  inca- 
pable of  being  produced,  and  estopped  the  party  who  made 
it  and  all  claiming  under  him  from  denying  it.  1  Salk. 
286;  4  Coin.  Dig.  En.  B.  5,  93. 

The  Court.  Harrington,  Chief  Justice,  charr/cd  the  jury : 
The  act  which  the  plaintiff  complained  of  in  the  case  as 


SUPERIOR  COURT. 


the  trespass  alleged  by  him,  and  the  place  where  he  as- 
sumed it  was  committed,  was  the  erection  of  an  hydraulic 
ram  on  what  had  once  been  the  bed  of  an  ancient  mill- 
pond,  known  as  Grantham's,  or  Moore's  mill.  The  plain- 
tiff alleges  that  he  was  in  possession  of  the  place  at  the 
time  the  trespass  complained  of  was  committed,  and  that 
the  invasion  of  this  possession  by  the  defendant  constituted 
him  a  trespasser,  and  entitled  the  plaintiff  to  a  verdict 
without  reference  to  his  title,  unless  the  defendant  had 
shown  on  his  part  a  good  and  valid  legal  title  to  it.  The 
general  principle  of  law  in  regard  to  the  action  was  this, 
that  the  action  of  trespass,  quare  clausem  fregit,  lies  for  a 
wrong  done  to  the  possession  of  real  property ;  and  a  plain- 
tiff proving  himself  in  possession  merely  of  such  property, 
and  an  entry  upon  it  by  the  defendant,  it  would  constitute 
the  latter  a  trespasser,  unless  he  could  prove  on  his  part  a 
title  to  the  premises,  or  a  right  otherwise,  as  by  license  or 
permission,  to  make  such  entry.  If,  therefore,  the  plaintiff 
had  proved  that  he  was  at  the  time  in  possession  of  the 
place  where  the  ram  was  erected,  as  the  erection  of  it  by 
the  defendant  was  admitted,  he  would  be  entitled  to  re- 
cover damages  for  the  trespass  without  further  proof  of 
title,  unless  the  defendant  had  proved  a  better  title  to  the 
premises,  or  a  possession  in  common  with  the  plaintiff  of 
them.  In  the  latter  case  the  parties  were  both  put  upon 
their  proof  of  title,  and  that  party  must  prevail  who  had 
proved  the  legal  title  to  be  in  him.  In  a  case  of  common 
possession  of  land  by  both  parties  to  the  suit,  the  law  ad- 
judged the  rightful  possession  to  him  who  had  the  legal 
title,  and  no  length  of  time  of  such  holding  could  give  a 
title  bv  possession  as  against  such  lecral  title;  but  an  inde- 
pendent,  separate,  and  adverse  holding,  under  an  exclusive 
claim,  continuously  asserted  and  maintained  for  twenty 
years,  was  itself  a  good  title.  The  nature  or  kind  of  pos- 
session which  would  give  title  to  real  estate,  must  of  course 
depend,  in  some  degree,  on  the  nature  and  condition  of 
the  property  itself.  An  inclosure  is  one  mode  of  holding. 
Cutting  wood  or  grass  upon   land  was  an  act  of  asserted 


BARTHOLOMEW  v.  EDWARDS.  23 


possession ;  and  even  the  pasturing  of  cattle  repeatedly, 
and  as  a  matter  of  exclusive  right,  on  uninclosed  land,  was 
evidence  of  possession ;  yet  these  acts  must  be  exclusive, 
in  opposition  to  others,  and  continued  adversely  for  twenty 
years,  to  confer  an  absolute  title  by  possession  merely. 
But  no  act  that  does  not  amount  in  itself  to  an  assertion 
of  right  to  the  soil,  could  be  evidence  of  possession  of  the 
soil.  Thus  the  use  of  water  in  a  mill-pond  would  not  be 
evidence  of  title  to  the  land  which  it  covered,  because  such 
use  of  the  water  for  mill  privileges,  or  any  other  purpose 
connected  with  the  water  simply,  and  not  with  the  land  it 
covers,  is  not  evidence  of  title  to  the  land,  or  of  that  kind 
of  possession  which  could  give  title  to  the  land.  In  con- 
templation of  law  such  a  party  could  not  own  the  water; 
all  he  could  claim  would  be  the  right  to  the  use  of  it,  and 
to  the  accumulation  and  flow  of  it  for  the  purposes  indi- 
cated ;  and,  not  possessing  the  water  which  covered  and 
occupied  the  land,  he  could  not  be  said  strictly  to  possess 
the  soil  covered  by  it;  at  all  events,  except  for  the  special 
uses  and  purposes  before  stated.  It  was  not  an  uncommon 
thing  for  the  water  privilege,  and  even  the  privilege  of 
drowning  land  for  mill  purposes,  to  exist  in  one  person, 
and  the  right  to  the  land  as  a  resulting  or  remaining  right, 
subject  to  the  privilege,  to  exist  and  reside  in  another;  and 
in  such  a  case  the  possession  would  not  be  adverse,  but 
consistent  with  the  right  of  the  owner  of  the  soil  covered 
by  the  water.  The  main  question,  then,  in  the  case  is, 
which  of  the  parties  had  shown  title  to  the  place  formerly 
covered  by  the  waters  of  the  pond  which  had  been  aban- 
doned for  the  purpose  of  a  mill  stream,  and  which  was 
now  claimed  by  both  parties  as  land,  to  be  used  and  en- 
joyed as  such  without  any  reference  to  mill  privileges.  If 
such  a  possession  as  had  been  before  defined  ;  that  is  to 
say,  it'  an  actual,  exclusive,  uninterrupted  and  adverse 
possession  of  the  place  in  question  for  a  period  of  twenty 
years  since  the  mill-pond  was  abandoned  and  went  down, 
had  not  been  proved  on  the  part  of  the  plaintiff,  then  the 
parties  would  stand  with  regard  to  it  on  their  respective 


24  SUPERIOR  COURT. 

legal  rights  as  they  were  presented  in  the  paper  titles  ex- 
hibited by  them. 

The  land  in  question  at  one  time  belonged,  on  the  show 
of  both  parties,  to  the  Granthams ;  and  the  plaintiff  derives 
his  title  from  Grantham  through  sundry  intermediate 
deeds  to  Moore,  Caldwell,  Hinsey,  Fenniater,  Kay,  Moore, 
Gross,  and  Mary  Bartholomew.  The  defendant,  on  the 
other  hand,  claimed  title  under  the  will  of  Jacob  to  Isaac 
Grantham,  and  the  will  of  the  latter  to  Thomas  and  Isaac 
G.  Jacquett,  the  sheriff's  sale  of  their  property  to  Mc- 
Dowell, and  the  sheriff's  sale  of  the  property  of  the  latter 
to  the  defendant.  All  these  title-papers  had  been  exhi- 
bited in  evidence,  together  with  the  plots  and  pretensions 
of  the  parties,  and  the  lines  of  the  dejeds  as  respectively 
claimed  by  them  ;  and  it  would  be  for  the  jury  to  say,  from 
the  proof  before  them,  whether  the  lines  of  either  or  any 
of  the  deeds  included  the  land  in  controversy;  and,  if  so, 
to  which  of  the  parties,  the  place  where  the  trespass  is 
alleged  to  have  been  committed,  belonged,  according  to 
the  deeds  shown  and  the  lines  located  on  the  plots. 

But  the  court  was  called  on  to  remark  upon  the  con- 
struction and  effect  of  some  of  the  deeds,  the  first  of  which 
was  the  one  recited  in  the  deed  from  Samuel  Moore  to 
James  Caldwell,  of  the  date  of  171*2,  purporting  to  be  from 
Isaac  Grantham  to  Scott  and  Patterson,  and  which  was 
supposed  to  refer  to  the  place  in  dispute.  That,  however, 
was  a  question  of  fact  to  be  decided  by  the  jury.  If  it  did 
not,  of  course  the  force  and  effect  of  it  was  of  no  conse- 
quence in  the  case.  But,  supposing  the  tour  acres  em- 
braced in  that  deed  to  include  the  premises  in  question, 
two  objections  had  been  taken  to  it  by  the  counsel  for  the 
defendant;  the  first  of  which  was  that  the  deed  itself  being 
of  record,  as  the  recital  states,  the  record  should  have  been 
produced,  or  its  absence  accounted  for,  before  the  recital, 
which  was  only  secondary  evidence  of  it,  could  even  be 
admitted  to  be  weighed  or  regarded  by  the  jury :  and  in 
the  second  place,  admitting  that  the  recital  was  evidence 
of  the  deed,  the   terms  employed  would   not   convey  the 


BARTHOLOMEW  v.  EDWARDS.  25 

land  formerly  covered  by  the  water  of  the  pond.  As  to 
the  non-production  of  the  record  itself,  it  is  open  and  sub- 
ject to  remark  as  a  fact  affecting  the  force  and  perhaps  the 
correctness  of  the  recital  in  this  respect;  but  still  the  re- 
cital is  in  evidence,  introduced  by  the  regular  admission 
of  the  deed  which  contained  it,  and  it  would  be  for  the 
jury  to  give  it  whatever  weight  they  might  consider  it 
entitled  to  under  the  circumstances.  In  regard  to  the 
other  objection,  the  terms  employed  in  the  deed  according 
to  the  recital  were,  "  together  with  all  and  singular  the 
mill,  house,  mill-dam,  races,  floodgates,  mill-wheels,  stones, 
hoppers,  bolting  chests  and  cloths,  waters,  water-courses, 
and  others  the  appurtenances;"  and  it  was  the  opinion  of 
the  Court  that,  under  these  recited  words,  the  title  to  the 
bed  of  the  pond,  or  the  soil  occupied  by  the  water  of  it, 
would  not  pass.  That  might  appear  to  some  as  a  refined 
distinction ;  it  was  sustained,  however,  not  only  on  legal 
principles,  but  was  vindicated  by  reason  and  common  prac- 
tice. The  conveyance  of  an  estate  in,  or  title  to  the  land, 
and  the  grant  of  an  easement  or  privilege  connected  with 
or  in  regard  to  land,  are  different  things.  The  latter 
might  possibly  be  said  to  be  appurtenant  to  the  former  in 
some  oases,  but  the  land  could  never  be  said  to  be  appur- 
tenant to  the  latter ;  and  unless  the  terms  employed  were 
proper  and  sufficient  words  to  include  and  transfer  the 
title  to  the  land,  it  would  not  pass  by  the  conveyance, 
whatever  rights  or  privileges  might  otherwise  be  granted 
by  it.  There  were  no  words  employed  in  the  recital  which 
could  operate  to  convey  the  ground  covered  by  the  pond. 

Another  deed  had  been  referred  to  in  the  testimony  of 
several  witnesses,  upon  which  the  Court  had  been  asked  to 
charge  as  matter  of  evidence.  It  was  alleged  by  the  plain- 
tiff that  there  was  a  lost  deed  from  a  person  by  the  name 
of  Grantham  to  a  person  by  the  name  of  Moore,  relating 
to  the  premises  in  question,  and  which  conveyed  title  in 
the  land  formerly  covered  by  the  pond  to  a  party  under 
whom  he  claimed.  That  deed  had  not  been  produced; 
but   it  was  admissible  to  supply  the  loss  of  it,  by  proving 

3 


26  SUPERIOR  COURT. 

Jirst,  its  existence,  secondly,  its  destruction,  or  loss,  thirdly, 
its  contents — its  whole  contents — in  substance  and  effect. 
Had  the  plaintiff  proved  that  any  such  deed  ever  existed — 
a  deed  lawfully  executed  by  the  party  of  the  former  name, 
who  once  owned  the  land,  conveying  it  to  the  Samuel 
Moore  under  whom  he  claimed — that  such  deed  had  been 
lost  and  could  not  be  produced,  after  diligent  search  for  it 
wherever  it  might  have  reasonably  been  supposed  to  be, 
and  if  produced,  that  it  would  cover  the  place  in  regard  to 
which  the  controversy  existed?  On  that  subject  the  jury 
would  recur  to  the  testimony  of  the  several  witnesses  as  to 
the  deed,  and  to  the  declarations  of  parties  interested  in 
that  question,  and  whose  declarations,  if  made  at  a  time 
when  such  interest  existed  in  them  and  before  they  con- 
veyed away  the  land,  would  bind  the  parties  claiming  un- 
der them. 

The  plaintiff  had  a  verdict ;  and  at  the  same  term  the  de- 
fendant obtained  a  rule  to  set  it  aside,  on  the  ground  of 
misdirection  in  the  charge  of  the  Court  to  the  jury,  which 
was  afterwards  heard,  and  a  new  trial  granted.       Vide  post. 

Rodney,  for  plaintiff. 

T.  F.  and  J.  A.  Bayard,  for  defendant. 


James  Stephens,  Executor  of  Alexander  Stephens,  de- 
ceased, r.  The  Green  Hill  Cemetery  Company,  of  Chris- 
tiana Hundred. 

A  bill  of  particulars  does  not  restrict  tin1  party  furnishins:  it  to  «1  i — 1 
proof  of  thf  several   matters  which   it  contains,  hut   he   may  prove  l.y 
Lcencxitl  evidence  tic  value  of  the  whole,  or  the.  a^re^ate  of  his  ileinuii'l. 

A  provi-ion  in  the  charter  of  a  company,  that  any  trustee  ..r  manager  of 
it.  who  had  contracted  debts  or  expended  money  for  the  hum-tit  or  im- 


STEPHENS  v.  GREEN  HILL  CEMETERY  CO.       27 

provement  of  the  property  of  the  association,  before  its  incorporation 
by  the  Legislature,  shall,  after  its  incorporation,  have  a  claim  and  a 
lien  on  the  proceeds  of  the  6ale  of  such  property  belonging  to  the 
company,  gives  a  legal  remedy  against  the  company,  and  not  an  equita- 
ble remedy  against  the  proceeds  of  such  sale  merely,  and  an  action  of 
assumpsit  maybe  maintained  for  the  recovery  of  it,  to  be  paid  out  of 
the  proceeds  of  the  sale  of  the  property. 
Parol  proof  that  a  bond  given  to  such  a  creditor  for  two  thousand  dollars 
was  accepted  by  him  in  lieu  of  all  other  claims  against  the  company,  is 
admissible,  and  does  not  contradict,  or  vary,  or  add  to  the  terms  of  the 
bond,  but  is  consistent  with  it. 

This  was  an  action  of  assumpsit  to  recover  a  balance  due 
from  the  defendants  to  the  plaintiff  as  executor,  for  work 
and  labor  done  and  materials  furnished,  by  Alexander 
Stephens,  in  preparing  and  constructing  the  cemetery  of 
the  company.  The  company  had  originally  consisted  of 
trustees  merely  of  the  Green  Hill  Presbyterian  Church, 
and  as  such,  had  purchased  three  acres  of  ground  of  Alex- 
ander Stephens  and  erected  a  church  upon  it,  and  had  also 
prepared  and  laid  out  the  ground  for  a  public  cemetery  in 
connection  with  it.  The  deceased,  it  appeared,  had  been  an 
active  member  and  the  treasurer  of  the  association,  and 
had  furnished,  as  his  executor  alleged,  six  thousand  dollars 
and  collected  subscriptions  and  voluntary  contributions  to 
the  amount  of  three  thousand  and  seven  hundred  dollars, 
for  these  purposes,  and  the  action  was  brought  to  recover  the 
excess  of  his  expenditures  over  his  receipts.  After  the 
erection  (if  the  church  and  the  construction  of  the  ceme- 
tery, and  after  the  balance  demanded  had  been  contracted 
as  before  stated,  the  defendants  applied  for  and  obtained 
from  the  Legislature  an  act  of  incorporation,  by  the  name 
of  the  Green  Hill  Cemetery  Company,  and  the  action  was 
against  them  in  their  corporate  character  as  such  company. 
Alexander  Stephens  was  constituted  by  the  charter  a  trus- 
tee, or  manager  of  the  company,  the  sixth  section  of  which 
was  as  follows  :  ib  The  trustees,  or  managers  aforesaid,  may 
contract  debts,  on  their  own  responsibility,  for  the  benefit 
of  the  cemetery  ;  and  in  order  to  enable  the  managers  to 
pay  the  debts  already  contracted  by  them,  or  which   may 


28  SUPERIOR  COURT. 

hereafter  be  contracted,  or  to  reimburse  to  them  any  money 
which  they,  or  either  of  them,  shall  advance  in  payment  of 
such  debts,  or  otherwise,  for  the  use  of  the  cemetery,  they 
shall  have  a  claim  and  lien  upon  the  proceeds  of  the  sales 
of  burial  lots  in  the  cemetery ;  and  such  proceeds  shall  be 
applied  to  the  payment  of  such  debts,  or  to  the  reimburse- 
ment of  such  advances,  so  as  to  fully  indemnify  the 
managers  in  the  premises."  It  also  appeared  that  the  de- 
ceased afterwards  submitted  an  account  of  the  expenses 
incurred  in  building  the  church,  and  an  agreement  was  en- 
tered into  between  him  and  the  managers  that  the  com- 
pany should  execute  to  him  a  bond  for  two  thousand  dol- 
lars, which  was  done. 

On  the  trial  a  witness  for  the  plaintiff  was  asked  the  ques- 
tion, what  the  church  was  worth,  and  how  much  it  would 
cost  to  build  such  a  church  ? 

J.  A.  Bayard,  for  the  defendants,  objected  to  the  admis- 
sibility of  it.  A  bill  of  particulars  of  the  plaintiff's  claim 
has  been  furnished  us  in  this  case,  on  due  notice  served 
upon  his  counsel  for  that  purpose,  and  T  submit  that  it  is 
not  competent  for  him  now  to  ask  the  question,  and  prove 
it  in  this  vague  and  general  manner. 

The  Court  overruled  the  objection  without  hearing  a  re- 
ply. Bills  of  particulars  are  somewhat  new  in  our  prac- 
tice, and  arise  under  the  Revised  Code.  But  as  the  object 
of  them  is  to  specify  the  plaintiff's  claim,  and  to  apprise 
the  opposite  party  of  the  distinct  grounds  and  several 
items  of  the  demand,  evidence  of  a  new  claim,  or  of  a 
distinct  matter  not  embraced  in  the  bill  of  particulars,  can- 
not be  allowed,  on  the  ground  of  surprise  to  the  other  side. 
That,  however,  would  not  preclude  the  proof  of  the  aggre- 
gate of  the  bill  of  particulars  and  of  the  whole  demand  in 
the  mode  adopted  with  the  witness. 

The  plaintiff  having  closed  his  evidence,  the  counsel  lor 
the  defendants  submitted  amotion  for  a  nonsuit.     First, 


STEPHENS  v.  GREEN  HILL  CEMETERY  CO.   29 

because  the  plaintiff  owned  the  land  on  which  the  church 
was  built  until  some  time  after  it  was  commenced,  and  he 
had  not  proved  any  indebtedness  on  the  part  of  the  de- 
fendants to  him  for  the  church  ;  and  secondly,  because  he 
had  no  legal  claim  against  the  defendants  in  their  corpo- 
rate capacity  for  the  debts  contracted  by  him  on  account 
of  the  cemetery,  previous  to  their  incorporation  by  the 
Legislature.  The  only  remedy  which  he  could  have  under 
the  provisions  of  the  charter  was  in  equity,  to  enforce  his 
claim  and  lien  specifically  against  the  proceeds  of  the  sales 
of  the  lots  of  the  cemetery. 

The  counsel  for  the  plaintiff  denied  that  the  only  remedy 
was  in  equity,  if  there  wras  any  such  relief  at  all  in  the 
ease,  and  argued  that  the  remedy  provided  in  the  sixth 
section  of  the  charter  was  cumulative  merely,  and  did  not 
impair  the  right  of  the  plaintiff  to  maintain  the  present 
action  against  the  company  under  the  general  clause, 
which  secures  to  all  persons  who  have  legal  claims  against 
it,  the  right  to  sue  the  corporation. 

By  the  Court:  The  decision  of  the  question  presented  by 
the  motion  for  a  nonsuit  depends  on  the  construction  to 
be  given  to  the  sixth  section  of  the  charter.  If  the  plaintiff 
has  any  claim  against  the  company,  under  the  provisions 
of  the  charter  referred  to,  it  must  be  a  legal  claim,  for  it 
is  given  by  statute,  with  the  effect  and  operation  of  a  lien 
on  the  proceeds  of  the  sales  of  the  lots  of  the  cemetery  ; 
and  there  is  no  provision  in  the  act  for  the  recovery  of  the 
claim  in  chancery,  as  there  probably  would  have  been  had 
such  been  intended.  We  think  one  of  the  objects  of  the 
sixth  section  of  the  charter  was  to  give  a  legal  claim,  and 
of  course  a  remedy  at  law,  against  the  company  after  its 
incorporation,  to  any  one  of  the  managers  who  had  already 
contracted  debts,  or  made  pecuniary  advances  for  the  use 
and  benelit  of  the  cemetery,  to  be  paid  out  of  the  proceeds 
of  the  sales  of  burial  lots  in  it;  and  the  company  has  ac- 
cepted the  charter  with  this  provision  contained  in  it.  and. 


30  SUPERIOR  COURT. 

by  implication  at  least,  has  assented  to  it.  We,  therefore, 
think  the  present  action  may  be  maintained  for  any  such 
debts  contracted  or  advances  made  on  account  of  the  ceme- 
tery. But  there  is  nothing  in  the  charter  of  this  com- 
pany that  imposes  any  obligation  upon  it  to  reimburse  to 
any  one  expenses  incurred  by  him  in  the  erection  of  the 
church,  and  there  can  be  no  recovery  in  this  action  for  any 
such  expenses. 

Motion  for  nonsuit  refused. 

Mr.  Bayard  then  called  a  witness  to  prove  the  execution 
and  delivery  of  the  deed  by  Alexander  Stephens  to  the 
company  for  the  ground  on  which  the  cemetery  was  laid 
out,  and  of  the  bond  to  him  by  the  company  for  two  thou- 
sand dollars,  and  that  the  bond  was  accepted  by  him  at  the 
time  in  lieu  of  all  claims  which  he  had  against  the  com- 
pany. 

Mr.  Rogers  objected  to  the  latter  statement  of  the  wit- 
ness, because  it  was  inadmissible  as  evidence  to  add  by 
parol  proof  to  the  agreement  of  the  parties  contained  in 
the  bond,  which  is  not  simply  a  bond  for  the  payment  of 
money,  but  which  embodies  and  contains  a  special  agree- 
ment also  between  the  parties  in  regard  to  a  portion  of  the 
subject-matter. 

Mr.  Bayard:  The  proof  offered  does  not  vary  or  add  to 

the  meaning  or  terms  of  the  bond,  or  anything  contained 
in  it. 

The  Court  overruled  the  objection,  and  remarked  that 
there  was  nothing  in  the  objection  or  in  the  bond  to  bring 
it  within  the  rule  of  evidence  referred  to.  So  far  as  this 
case  was  concerned,  it  was  simply  a  bond  for  the  payment 
of  two  thousand  dollars  by  the  company  to  the  plaintiff 
without  any  consideration  expressed  for  which  it  was 
given.  The  evidence  proposed  does  not  contradict,  vary, 
or  add  to  the  terms  of  the  bond,  hut  is  entirely  consistent 


DOE  d.  BRIGHT  v.  STEPHENS.  31 

with  it.     Besides,  such  would  be  the  presumption  in  law, 
in  the  absence  of  any  proof  to  the  contrary. 

The  case  then  went  to  the  jury,  and  the  defendants  had 
a  verdict 

Wm.  H.  Rogers,  for  plaintiff. 

J.  A.  Bayard,  for  defendants. 


Doe  d.  William  Bright  v.  Rebecca  Stephens. 

Possession  is  not  necessary  to  enable  a  party  to  convey  by  deed  a  title  to 
land  in  this  State. 

No  inclosure  necessary  to  constitute  a  holding  by  adverse  possession. 

If  a  party,  after  suffering  judgment  by  default  in  an  action  of  ejectment, 
relinquishes  or  abandons  the  possession  of  the  premises,  no  length  of 
possession  prior  to  it  will  avail  him  in  a  second  action  of  ejectment 
against  him  for  the  same  premises,  although  the  plaintiff  did  not  enter 
into  possession  on  his  abandonment  of  it. 

Action  of  ejectment  for  a  vacant  lot  in  the  city  of  Wil- 
mington. The  premises  in  question  had  "originally  be- 
longed to  a  person  by  the  name  of  Caleb  Way,  in  1802, 
and  afterwards  became  the  property  of  one  Isaac  Jones  by 
purchase  at  sheriff's  sale  in  1803,  to  whom  the  plaintiff 
traced  his  title  through  sundry  intermediate  conveyances, 
produced  by  him  in  evidence,  on  which  he  relied  to  estab- 
lish his  legal  title;  as  also  upon  a  former  recovery,  in  1846, 
in  an  action  of  ejectment,  at  the  suit  of  Edward  Pennell 
and  others,  heirs-at-law  of  Deborah,  a  daughter  of  Isaac 
.Jones,  against  the  defendant,  for  an  undivided  third  part 
of  the  lot;  and  on  a  further  recovery  by  himself  in  an 
action  of  ejectment,  in  1 S 4 ! » ,  against  the  defendant,  for 
the  whole  of  the  lot,  in  which  he  obtained  judgment  by 
default    against    her;    after  which    she    voluntarily   relin- 


32  SUPERIOK  COURT. 

quished  and  abandoned  whatever  possession  she  had  had  in 
the  premises,  until  a  short  time  previous  to  the  commence- 
ment of  the  present  action. 

The  defendant,  on  the  other  hand,  relied  upon  an  ad- 
verse possession  of  the  premises  for  twenty  years;  that 
the  several  grantors  in  the  respective  conveyances  pro- 
duced in  evidence  on  the  part  of  the  plaintiff,  and  through 
whom  he  had  traced  his  legal  title  back  to  Isaac  Jones,  in 
1803,  were  all  out  of  possession  of  the  premises  when  their 
deeds  were  executed ;  and  upon  the  fact  which  appeared 
in  evidence,  that  Isaac  II.  Jones,  to  whom  one  undivided 
third  part  of  the  lot  had  descended  on  the  death  of  his 
father,  Isaac  Jones,  had  afterwards  conveyed  the  same  by 
deed  to  certain  trustees,  in  trust  for  himself  and  his  family; 
and  although  the  trustees  named  in  the  deed  had  subse- 
quently been  removed  from  their  office  of  trustees  under 
the  deed,  and  Bright,  the  plaintiff,  had  been  appointed 
trustee,  instead  of  them,  by  the  Court  of  Chancery,  yet 
no  deed  had  been  exhibited,  or  had  ever  been  executed  by 
the  removed  trustees  to  Bright  for  the  estate  vested  in  them 
by  the  deed  of  Isaac  II.  Jones  in  the  one-third  of  the 
premises;  and  that,  consequently,  the  legal  title  to  that 
undivided  third  part  of  the  lot  at  least  was  still  outstand- 
ing in  those  persons,  and  was  not  in  the  plaintiff 

Johnson,  for  the  defendant :  The  defendant  had  been  in 
the  undisturbed  possession  of  the  premises  for  more  than 
twenty  years;  and  as  the  parties  from  whom  the  plaintiff 
derived  his  title,  so  far  as  he  had  shown  any,  were  all  out 
of  possession  when  their  respective  deeds  were  executed, 
they  conveyed  no  legal  title  to  him  in  the  premises ;  and 
cited,  in  support  of  the  principle,  Adams  on  Ejectment,  43 
(note);  2  Hill's  Abr.  411;  4  Kent's  Com.  446,  447,  448; 
Williams  v.  Jarkson,  5  Johns.  Rep.  489;  Everard  et  al.  v. 
Beaumont,  7  Mass.  Rep.  7G ;  Walcotl  et  al.  v.  Kniyht  tt  al., 
6  Mass.  41S;  Revised  Code  (Delaware  Laws),  chap.  4:30, 
sec.  2. 


DOE  d.  BRIGHT  v.  STEPHENS.  33 

D.  M.  Bates,  for  the  plaintiff:  If  the  principle  asserted 
on  the  other  side  is  the  law  of  this  State,  how  did  it  be- 
come so?  What  statute,  or  what  judicial  decision  had 
been  cited  in  support  of  it  in  this  State,  as  might  be  done 
in  England,  in  New  York,  and  in  some  other  States  ?  The 
invalidity  of  a  conveyance  by  a  party  out  of  possession  was 
a  mere  consequence,  and  not  a  rule  of  the  feudal  tenure ; 
and  a  person  out  of  possession  under  that  system  had  no 
estate  in  the  premises,  but  a  mere  right  of  entry.  Another 
reason  of  it  was  in  the  mode  of  conveyance  by  feoffment. 
A  feoffment  could  not  be  made  without  livery  of  seizin ; 
and  livery  of  seizin  could  not  be  made  without  actual  pos- 
session. He  denied,  however,  that  the  principle  assumed 
on  the  other  side  had  ever  been  held  to  be  law  in  Ihis 
State,  and  was  proceeding  to  cite  authorities  on  the  point, 
when  the  Court  informed  him  that  it  was  not  necessary,  as 
the  principle  had  never  been  ruled  or  recognized  as  law  in 
this  State. 

In  regard  to  the  defence  of  an  adverse  holding  set  up  on 
the  other  side,  it  must  be  with  the  assumed  right  of  owner- 
ship over  the  property,  and  continuous,  without  interruption, 
for  twenty  years,  and  not  an  occasional  use  of  the  property. 
There  should  also  be  a  real  and  substantial  inclosure  of  the 
premises,  and  not  a  slight  and  temporary  one.  2  Johns. 
Rep.  233;  7  Mass.  331.  The  former  recovery  of  the 
premises  in  ejectment  by  the  plaintiff  by  default,  followed 
as  it  was  by  the  voluntary  abandonment  of  the  possession 
by  the  defendant,  would  give  the  plaintiff  a  good  prima  facie 
title  as  against  the  defendant,  and  would  entitle  him  to 
recover  in  the  present  action,  unless  she  showed  a  legal 
title.  Jackson  v.  Rir/htmire,  16  Johns.  324;  and  Jackson  v. 
Walker,  7  Conn.  637. 

The  Court,  Wootten,  ./.,  charged  the  jury :  That  it  was  in- 
cumbent upon  the  plaintiff  to  establish  a  good  and  legal 
title  to  the  premises  in  controversy  in  himself,  and  that  he 
could  not  recover  on  any  defect  or  deficiency  which  might 
appear  in  the  claim  or  title  of  the  defendant;   but  it  was 


34  SUPERIOR  COURT. 

not  necessary  for  the  plaintiff  to  prove,  according  to  the 
principle  of  law  as  long  recognized  and  established  in  this 
State  on  the  subject,  that  the  parties  under  whom  he  claims 
were  in  actual  possession  of  the  lot,  or  any  portion  of  it,  at 
the  time  when  they  sold  and  conveyed  their  interest  to 
him,  provided  the  jury  were  satisfied,  from  the  evidence 
before  them,  that  such  parties  had  a  good  title  to  the  pre- 
mises at  the  time  of  their  sale  and  conveyance  to  him ;  for 
the  principle  of  the  action,  as  recognized  here,  does  not 
require  possession  of  the  premises  by  the  grantor  in  order 
to  convey  a  legal  title  to  land  in  this  State.  If  it  appeared 
that  Isaac  II.  Jones  and  wife  had  conveyed  by  deed  his 
interest  in  the  lot  to  Wyant  &  Moore,  his  former  trustees, 
and  no  deed  had  been  shown  from  them  to  Bright,  the 
plaintiff'  and  the  present  trustee,  for  that  share  of  the  lot, 
he  would  not  be  entitled  to  recover  Isaac  II.  Jones's  undi- 
vided third  part  of  it,  notwithstanding  the  removal  of 
Wyant  &  Moore,  and  his  own  appointment  as  trustee  by 
the  Court  of  Chancer}',  for  the  legal  title  to  that  part  of  it 
would  be  still  outstanding  in  the  former  trustees,  and 
would  not  be  in  the  plaintiff. 

But  the  defendant  relies  on  a  continuous  adverse  posses- 
sion of  the  whole  lot  for  more  than  twenty  years.  If  that 
had  been  shown  it  would  entitle  the  defendant  to  a  verdict 
without  proof  of  an  actual  and  substantial  inclosure  of  the 
premises;  but  it  must  appear  to  have  been  an  actual  and 
uninterrupted  possession  for  twenty  years  at  least,  incon- 
sistent with  and  adverse  in  its  character  to  the  claim  and 
title  of  the  plaintiff.  If  the  jury  were  satisfied,  from  the 
evidence,  that  after  the  recovery  of  judgment  by  default  in 
the  action  of  ejectment,  in  1849,  by  the  plaintiff  against 
her,  the  defendant  bad  relinquished  or  abandoned  the  pos- 
session, although  the  plaintiff  had  not  entered  into  it.  she 
had  not  shown  such  a  continuous  adverse  possession,  pre- 
ceding the  commencement  of  the  present  action,  as  the 
law  required,  ami  the  plaintiff  would  be  entitled  to  recover. 

The  jury  could  not  agree,  and,  after  being  out  a  long 
time,  were  discharged. 


LOGAN  v.  THE  FAEMERS'  BANK.  35 


John  Logan  v.  The  Farmers'  Bank. 

A  general  warrant  of  attorney  to  confess  judgment  on  a  bond,  cannot  be 
varied  or  restricted  by  a  parol  agreement  not  to  enter  it  in  this  State, 
and  no  action  will  lie  on  such  agreement. 

This  was  an  action  of  assumpsit  to  recover  damages  for 
the  breach  of  a  parol  agreement  not  to  enter  judgment  on 
a  bond  which  the  plaintiff  had  given  to  the  defendant, 
with  warrant  of  attorney  to  confess  judgment  thereon.  The 
plaintiff  had  indorsed  a  note  in  bank  for  the  Messrs.  Young 
before  their  failure,  and  after  that  executed  a  bond  and  a 
mortgage  on  a  farm  in  Maryland  to  the  bank  to  secure  the 
payment  of  it,  with  the  agreement,  as  it  was  alleged,  that 
the  bond  was  not  to  be  entered  in  this  State.  Neither 
could  be  entered,  or  recorded,  however,  in  Maryland,  for 
the  want  of  a  stamp  under  the  statute  of  that  State;  they 
were  then  cancelled,  and  others  were  executed  with  the  like 
agreement  and  duly  stamped,  and  the  mortgage  was  en- 
tered there.  The  warrant  of  attorney  wan  general,  and 
authorized  the  confession  of  judgment  on  the  bond  in  this 
State  or  elsewhere.  Owing  to  some  misunderstanding 
between  the  parties,  and  the  failure  of  the  bank  to  realize 
the  debt  on  the  mortgage  out  of  the  estate  in  Maryland,  the 
bond  was  afterwards  entered  in  this  State,  and  sundry  writs 
had  been  issued  upon  the  judgment  entered  thereon,  by 
reason  of  which  the  plaintiff  complained  that  he  had  been 
prevented  from  selling  certain  lands  in  this  State,  and  had 
been  greatly  damaged,  kc. 

A  witness  was  called  to  prove  the  agreement. 

Bradford,  for  the  defendant,  objected  to  the  admissi- 
bility of  the  testimony,  first,  because  parol  evidence  was 
inadmissible  to  vary  or  contradict  the  authority  of  the 
warrant;  and,  secondly,  upon  the  ground  that  it  was  an 
agreement  touching  an  interest  in  or  concerning  land. 


36  SUPERIOR  COURT. 

William  H.  Rogers,  for  the  plaintiff,  replied,  that  it 
was  not  an  agreement  concerning  land,  but  in  regard  to  a 
judgment  bond,  and  insisted  that  it  was  competent  to  limit 
and  quality  the  authority  of  a  general  warrant  by  parol. 

But  the  Court  held,  that  it  was  not  competent  to  vary  or 
restrict  the  authority  of  a  general  warrant  of  attorney  by 
a  parol  agreement,  and  no  action  would  lie  on  such  an 
agreement. 

The  plaintiff  was  nonsuited. 


William  Kennard  v.  Thomas  Whitson  and  Nathan  Hob- 
son,  Executors  of  Thomas  IIobson,  deceased. 

An  agreement  to  boiyd  and  lodge  another  implies  an  engagement  to  pay 
the  usual  and  reasonable  attentions  to  the  health  and  comfort  of  the 
boarder  to  be  expeeted  under  the  circumstances,  and  such  reasonable  and 
customary  attentions  will  furnish  no  ground  for  u  distinct  or  additional 
charge  against  the  boarder. 

There  is  nothing,  however,  in  this  relation  or  agreement  to  entitle  the 
boarder  to  expect  or  demand  of  the  family  boarding  him,  the  usual 
and  often  arduous  attentions  and  services  of  a  nurse,  in  a  case  of  ex- 
treme or  protracted  illness,  without  paying  additionally  for  such  ser- 
vices;  but  if  such  services  are  rendered  by  the  wife  or  other  member 
of  the  family,  through  a  series  of  years,  to  an  infirm  and  aged  boarder, 
with  the  hope  and  expectation  merely  of  being  remembered  in  his  will 
and  rewarded  for  it,  by  devise  or  bequest,  after  his  death,  it  will  furnish 
no  ground  of  action  for  such  services  against  his  executors. 

Assumpsit  for  board  and  lodging  and  services  in  sick- 
ness, of  Thomas  IIobson,  deceased. 

The  proof  was  that  the  deceased,  who  was  a  very  aged 
and  infirm  man,  and  severely  afflicted  with  an  offensive 
disease,  was  a  boarder  and  lodger  in  the  family  <>f  the 
plaintiff,  who  was  a  tenant  of  his,  at  a  charge  of  two  dol- 


KENNARD  v.  HOBSON'S  EXECUTORS.  37 

lars  per  week.  His  condition  was  such  as  frequently  to 
require  a  great  deal  of  unpleasant  nursing  night  and  day, 
and  as  he  was  weak  and  childish,  he  seemed  unwilling  at 
such  times  to  receive  the  necessary  attentions  from  any 
member  of  the  family  but  the  wife  of  the  plaintiff,  and 
was  faithfully  and  laboriously  nursed  by  her  through  a 
period  of  three  years.  It  was  also  in  evidence,  that  he 
had  repeatedly  acknowledged  his  obligations  to  her,  and 
declared  during  his  last  illness  that  he  could  never  suffi- 
ciently reward  her  for  her  great  kindness  and  attention  to 
him,  and  had  frequently  said  to  her  during  the  time  lie 
had  been  boarding  in  the  family  that  she  should  be  re- 
warded for  it,  and  to  others,  at  one  time,  that  he  intended 
to  leave  her  the  house  in  which  they  lived,  and  at  another, 
that  a  house  which  he  was  then  having  built  was  intended 
for  her;  but  he  made  no  provision  for  her  in  his  will. 

Gordon,  for  the  plaintiff,  insisted  that  these  services 
were  not  rendered  with  the  hope  or  anticipation  of  any 
reward  in  the  last  will  and  testament  of  the  testator,  but 
were  performed  with  a  positive  intention  on  the  part  of 
the  plaintiff  at  the  time  to  charge  the  deceased  for  them, 
in  addition  to  the  price  stipulated  to  be  paid  for  board  and 
lodging  only. 

Bradford,  for  the  defendant,  contended  that  they  were 
rendered  with  such  a  hope  and  expeetation  merely,  and 
without  any  idea  of  charging  for  them  additionally  at  the 
time,  as  the  plaintiff  and  his  family  well  knew,  from  the 
age  and  infirmities  of  the  testator  when  they  received 
him  as  a  hoarder  and  lodger,  that  he  would  necessarily  re- 
quire frequent  nursing  and  much  attention  in  his  illness; 
and  yet  nothing  was  said  in  regard  to  the  matter  at  the 
time  when  the  price  was  agreed  upon  for  his  hoard,  and 
no  charge  was  ever  made  tor  it  until  after  his  death,  and 
asked  the  Court  to  instruct  the  jury  that  it"  such  was  the 
ease,  the  plaintiff  was  not  entitled  to  recover  tor  such  ser- 


38  SUPERIOR  COURT. 

vices,  or  anything  more  than  the  balance  of  his  account 
for  board  simply. 

The  Court,  Houston,  «/.,  charged  the  jury:  That  if  the 
services  referred  to,  in  the  way  of  assiduous  nursing  and 
attention  during  the  severe  and  protracted  illness  of  the 
deceased,  were  rendered  by  the  wife  of  the  plaintiff  with 
the  hope  and  expectation  merely  of  being  remembered 
and  rewarded  for  them  in  his  will,  and  without  any  inten- 
tion on  the  part  of  her  husband  to  make  any  charge  for 
them  at  the  time,  then  they  were  to  be  regarded  as  offices 
of  favor  and  kindness  only,  and  would  furnish  no  ground 
of  action  against  his  estate;  for  in  such  a  case,  whether 
there  should  be  any  reward  or  compensation,  and  what 
should  be  the  amount  of  it,  were  left  entirely  to  the  grati- 
tude and  discretion,  the  bounty  and  generosity  of  the  tes- 
tator, and  the  plaintiff  would  be  without  any  legal  redress 
if  disappointed  in  these  expectations.  This  remark,  how- 
ever, would  not  apply  to  any  balance  that  might  be  due 
for  actual  board  at  the  time  of  the  death  of  the  testator, 
according  to  the  price  agreed  upon  between  the  plaintiff 
and  the  deceased.  But  an  agreement  to  board  and  lodge 
a  person,  implied  an  engagement  to  pay  the  usual  and 
reasonable  attentions  to  the  comfort  and  health  of  the 
boarder  to  be  expected  under  the  circumstances,  and  such 
reasonable  and  customary  attentions  would  furnish  no 
ground  tor  a  distinct  or  additional  charge  against  the 
boarder.  There  was  nothing,  however,  in  this  relation  or 
agreement  which  would  entitle  the  boarder  to  expect  or 
demand  of  the  wife  or  family  of  the  person  boarding  him, 
the  usual  and  often  arduous  attentions  and  services  of  a 
nurse,  in  a  case  of  extreme  or  protracted  illness,  without 
paying  additionally  for  them;  and  it'  such  services  had 
been  performed  by  the  wife  of  the  plaintiff  for  the  de- 
ceased with  the  intention  of  charging  additionally  for  them, 
and  with  the  expectation  of  being  paid  for  them,  without 
reference  to  the  testamentary  dispositions  of  the  testator, 
then  the  plaintiff  would  be  entitled  to  recover  such  addi- 


THE  STATE  ex  rel.  WRIGHT  v.  WARREN.        39 

tional  compensation  for  them  as  would  be  just  and  reason- 
able, according  to  the  nature  and  amount  of  the  services 
rendered. 

Verdict  fop  the  plaintiff  for  $1029.36f. 

Gordon,  for  the  plaintiff*. 

Bradford,  for  the  defendant. 


The  State  ex  relatione,  Samuel  Wright  v.  Charles  II. 

Warren. 

Although  no  certificate  or  other  formal  mode  of  making  known  to  a  per- 
son his  election  to  the  office  of  road  commissioner,  or  other  public  office, 
may  be  prescribed  or  required  by  law,  the  result  of  the  election,  when 
ascertained  and  announced  at  the  close  of  it,  is  final  and  conclusive  on 
the  officers  of  the  election,  and  cannot  afterwards  be  reconsidered  or 
altered  by  them. 

This  case  arose  on  a  motion  for  a  rule  on  Charles  II. 
Warren,  the  respondent,  to  show  cause  wherefore  a  writ, 
in -the  nature  of  a  writ  of  quo  warranto,  should  not  issue 
against  him  for  usurping  the  office  of  a  road  commissioner 
in  Pencader  Hundred,  New  Castle  County. 

The  affidavit  of  Samuel  Wright,  on  which  the  motion 
was  founded,  alleged  that,  on  the  first  Tuesday  in  October, 
1854,  an  election  was  held  at  Glasgow,  in  said  Hundred, 
for  the  election  of  an  inspector,  assessor,  and  two  road 
commissioners  for  said  Hundred,  of  which  Joseph  Veach 
was  the  presiding  officer,  and  Robert  Cann  and  Wesley 
Clement  were  judges;  and  that,  after  the  poll  was  closed, 
the  presiding  officer  announced  that  Josiah  Stanton  was 
elected  inspector  and  Adam  Dyott  assessor,  and  also  de- 
clared that  Samuel  Kambo  and  Samuel  Wright,  the  depo- 
nent, were  elected  road  commissioners;  that  the  presiding 
officer  and  judges  of  the  election  made  and  signed  certi- 


40  SUPERIOR  COURT 

ficates  of  the  election  of  the  inspector  and  assessor,  but 
refused  to  give  a  certificate  of  the  election  of  road  commis- 
sioners, because  the  law  did  not  require  them  to  do  it. 
That,  acting  upon  the  official  announcement  of  his  election 
by  the  presiding  officer,  the  deponent  applied  to  Daniel 
McCallister,  a  justice  of  the  peace,  who  was  also  a  clerk 
of  the  said  election,  to  be  sworn  as  a  road  commissioner  of 
the  Hundred,  but  he  refused  to  administer  the  oath  to  the 
deponent,  on  the  ground  that  he  had  not  been  elected  to 
the  office  ;  and  he  then  applied  to  the  presiding  officer  and 
judges  of  the  election  for  such  a  certificate,  and  was  again 
refused  by  them,  on  the  ground,  as  they  alleged,  that,  after 
the  election,  an  error  had  been  discovered  in  counting  the 
votes,  and  that  the  said  Charles  II.  Warren,  who  was  also 
voted  for  as  a  road  commissioner  at  the  election,  was  the 
person  elected,  and  not  the  deponent ;  although  there  was 
no  announcement  of  his  election  by  the  presiding  officer 
on  the  day  of  the  election,  nor  was  the  said  Warren  an- 
nounced by  the  presiding  officer  and  judges  on  that  day  to 
have  been  elected,  nor  was  any  certificate  given  to  him  by 
them  of  his  election  ;  and  that  the  said  Charles  II.  Warren 
had  since  been  sworn,  had  usurped,  and  was  then  pretend- 
ing to  exercise  and  perform,  the  powers  and  duties  of  the 
office  of  a  road  commissioner  of  the  Hundred. 

To  this,  Warren,  the  respondent,  filed  a  counter-affidavit. 
in  which  he  stated  that,  during  the  reading  and  tallying  of 
the  votes  cast  at  said  election,  one  ballot  was  found  to  con- 
tain the  name  of  a  person  voted  for  as  assessor  and  the 
names  of  two  voted  for  as  road  commissioners,  but  the 
name  of  no  one  for  the  office  of  inspector ;  and  that  another 
ballot  was  found  to  contain  the  name  of  a  person  for  in- 
spector and  the  names  of  two  persons  for  road  commis- 
sioners, but  the  name  of  no  one  upon  it  for  the  office  of 
assessor;  and  the  judges  of  the  election  being  in  doubt  at 
the  time  as  to  the  sufficiency  and  legality  of  these  two  bal- 
lots, laid  them  aside  for  the  purpose  of  examining  the  law 
more  particularly  in  regard  to  their  validity  alter  the 
reading  out   was  finished.      That,  when   the   reading  out 


STxVTE  ex  rel.  WRIGHT  v.  WARREN.  41 

was  finished,  it  appeared,  excluding  the  two  ballots  above 
mentioned,  the  said  Samuel  Wright  had  one  vote  more  for 
the  office  of  road  commissioner  than  the  deponent,  but, 
counting  and  including  those  ballots,  the  deponent  had 
one  more  for  the  office  than  the  said  Samuel  Wright,  the 
deponent  having  been  voted  for  as  a  road  commissioner 
on  both  of  the  said  ballots.  That  the  judges  of  the  said 
election  did  not  decide  upon  the  validity  of  those  two  bal- 
lots until  the  next  morning  after  the  election,  when  they 
determined  that  the  same  were  legal  votes  ;  and  thereupon 
the  deponent  was  informally  notified  of  his  election  by 
David  McCallister,  one  of  the  clerks  of  the  election,  who, 
being  also  a  justice  of  the  peace  for  the  county,  adminis- 
tered to  the  deponent  the  proper  oath  of  office ;  and  that, 
since  he  was  so  qualified,  he  had  exercised,  and  still  exer- 
cises, the  said  office.  The  affidavit  concluded  with  a  denial 
that  any  certificate,  or  formal  proclamation  by  the  officers 
of  the  election,  of  the  election  of  road  commissioners,  was 
either  usual  or  necessary,  according  to  custom  or  the  law 
in  such  cases. 

]?od)ie>/,  for  the  State,  was  proceeding  to  call  his  witnesses 
to  sustain  the  statement  of  facts  contained  in  the  affidavit 
of  the  relator,  and  on  which  the  motion  for  the  rule  was 
founded,  when  the  counsel  for  the  respondent  interrupted 
him. 

Z).  31.  Boies,  for  respondent :  Were  witnesses  to  be  heard 
in  the  present  stage  of  the  case?  There  was  nothing  in 
the  law  in  regard  to  the  election  of  road  commissioners 
that  required  any  certificate,  proclamation,  or  announce- 
ment by  the  officers  of  the  election,  that  any  one  was 
elected  :  and  there  was  nothing  alleged  in  the  affidavit  of 
the  relator  which  the  court  could  inquire  into,  for  he  did 
not  even  allege  that  he  was  elected  a  road  commissioner. 
All  he  alleged  merely  was  that  the  presiding  officer  of  the 
election  announced  at  the  close  of  it,  after  reading  and 
counting  the  ballots,  that  he  was  elected.      Besides,  the 

4 


42  SUPERIOR  COURT. 

affidavits  of  the  relator  and  respondent  did  not  contradict 
each  other ;  and  the  affidavit  of  the  latter  showed  that,  in 
point  of  fact  and  according  to  the  law  of  the  case,  which 
was  for  a  time  misapprehended  hy  the  judges,  he  was  duly 
elected. 

Mr.  Rodney:  This  was  not  a  suit  between  the  relator 
and  respondent  involving  a  question  of  right  or  title  to  the 
office  between  them  as  the  parties  to  such  suit,  but  the 
writ  might  issue  on  the  affidavit  of  any  one,  for  it  was  not 
to  inquire  if  the  relator  was  elected,  but  by  what  authority 
the  respondent  held  and  exercised  the  office.  Road  com- 
missioners are  to  be  elected  on  a  certain  day  appointed  by 
law,  and  the  election  must  be  completed  on  that  day. 
What  constituted  an  election  ?  The  organization  of  the 
body  to  hold  it,  the  casting  of  the  ballots,  the  reading  and 
counting  of  the  same,  and  the  determination  of  the  result 
by  the  officers  appointed  by  law  for  the  purpose ;  all  of 
which  must  be  done  on  that  day,  and  none  of  which  can 
be  under  the  law  adjourned  or  deferred  to  another  day. 
In  point  of  fact  the  relator  was  prepared  to  prove  that 
the  election  of  the  respondent  was  not  declared  or  deter- 
mined until  two  weeks  afterwards.  To  what  frauds  upon 
the  purity,  honesty,  and  legality  of  elections,  would  not 
the  sanction  of  such  a  course  as  that  necessarily  lead  !  If 
the  law  did  not  require  any  certificate  of  election,  what 
other  or  better  evidence  of  an  election  like  this  could  there 
be  under  the  law  than  the  official  promulgation  or  public 
announcement  by  the  judges  of  the  election  at  the  close 
of  it  ? 

Mr.  Bates :  The  counsel  on  the  other  side  had  assumed 
a  dangerous  principle,  that  any  private  individual  could 
come  into  court  and  institute  such  a  proceeding  ;is  this,  at 
the  cost  of  the  State,  in  the  name  of  the  Attorney-General. 
The  true  principle  and  distinction  was  this:  Any  private 
person  in  the  cast'  of  a  private  office  may,  at  his  own 
discretion,  become  the   relator,  and   institute   such   an   in- 


STATE  ex  rel.  WEIGHT  v.  WARREN.  43 

quiry ;  but,  in  the  case  of  a  public  office,  it  could  only  "be 
instituted  by  the  Attorney-General  himself.  But  the  re- 
lator does  not  allege  that  Warren,  the  respondent,  was  not 
elected.  He  therefore  did  not  state  sufficient  ground  to 
induce  the  court  to  entertain  the  application.  No  one 
could  move  the  court  for  an  inquiry  like  this  without 
alleging  that  the  respondent,  who  is  now  invested  with 
the  office,  and  exercising  the  functions  of  it,  did  not  re- 
ceive a  majority  of  the  legal  votes  for  it  polled  at  the  elec- 
tion. 

After  some  conversation  between  the  counsel  it  was 
then  agreed,  to  save  time  and  to  accommodate  the  wit- 
nesses present,  the  examination  of  them  should  proceed, 
reserving  all  questions  of  law  arising  in  the  case  for  the 
consideration  and  decision  of  the  court  afterwards. 

Several  witnesses  were  then  examined,  who  testified  that, 
after  the  election  was  closed  and  the  votes  were  counted 
out,  the  judges  and  clerks  and  presiding  officer  ascertained 
the  result,  and  announced  that  Mr.  Wright  and  Mr.  Rambo 
were  elected  road  commissioners.  The  board  had  no 
meeting  after  that  day.  The  two  votes  mentioned  in  the 
affidavit  of  the  respondent  were  rejected  by  the  officers  of 
the  election  at  the  time  they  were  read  as  illegal,  and  were 
not  laid  aside  for  further  consideration.  The  presiding 
officer  testified  that  it  was  not  until  he  was  on  his  way 
home  from  the  election  that  night  that  he  began  to  doubt 
whether  he  had  done  right  in  rejecting  them ;  and  it  was 
not  until  the  next  day,  on  looking  into  the  "Digest/'  that 
he  became  satisfied  that  he  had  erred  in  -doing  it;  and  the 
respondent  was  not  sworn  into  office  until  six  weeks  after- 
wards. 

By  t/if  Court:  At  this  stage  of  the  case  the  only  question 
before  us  is  on  granting  the  rule  to  show  cause,  and  with- 
out reference  to  the  testimony  of  the  witnesses  who  have 
been  examined,  and  which  properly  and  without  consent 
could  not  have  been  heard  at  this  stage  of  the  proceeding, 


44  SUPERIOE  COURT. 

the  court  thinks  there  is  sufficient  ground  disclosed,  and 
grants  the  information  on  the  affidavit  filed,  because  the 
officers  of  the  election  passed  judgment  on  the  sufficiency 
and  legality  of  the  votes  in  question  at  the  time  of  their 
rejection,  or  when  they  concluded  not  to  count  them,  and 
it  was  not  competent  for  them  after  the  close  of  the  elec- 
tion, and  the  result  of  it  was  ascertained  and  made  known, 
to  change  or  alter  that  result.  Although  no  certificate,  or 
other  formal  mode  of  making  known  to  a  person  his  elec- 
tion to  the  office  of  road  commissioner,  or  any  other  public 
office,  may  be  prescribed  or  required  by  law,  the  court 
considers  that  when  the  result  of  it  is  ascertained  and  an- 
nounced at  the  close  of  it,  it  is  final  and  conclusive  on  the 
officers  of  the  election,  and  cannot  afterwards  be  recon- 
sidered or  varied  by  them,  as  such  a  course  might  lead  to 
gross  abuses  on  the  part  of  such  officers  ;  and,  if  an  error 
should  be  committed,  it  is  not  to  be  corrected  by  the 
method  adopted  in  this  instance. 


Sally  B.  Davis  et  al.  v.  William  II.  Rogers,  Executor  of 
Samuel  B.  Davis,  deceased. 

The  propounder  of  a  will  on  an  issue  of  devisavit  vel  non  is  to  prove  the 
factum  or  formal  execution  of  it,  and  then  the  reviewers  having  the 
burden  of  invalidating  it,  have  the  opening  and  conclusion  of  the  ar- 
gument. 

rro.it'  of  the  factum  is  not  confined  to  the  subscribing  witnesses  of  the 
will  merely  ;  hut  any  other  witness  called  by  the  propounder  in  the 
fir-t  stage  of  the  case;  will  be  confined  in  his  evidence  to  proof  of  the 
execution  merely. 

An  executor  with  or  without  compensation  for  his  services  as  such  pro- 
vided for  in  the  will,  is  not  a  competent  witness  to  support  the  will.  Nei- 
ther is  a  trustee  appointed  by  the  will  with  a  provision  in  it  for  a  fair 
and  liberal  compensation  to  him  for  his  services  as  trustee,  a  competent 
witness  to  sustain  the  will. 

Parol  declarations  of  the  testator  as  to  his  testamentary  intention-,  are 
admissible  in  evidence  to  invalidate  an  instrument  propounded  as  his 
will. 


DAVIS  et  al.  v.  ROGERS.  45 

Generally,  the  animys  testandi  is  the  natural  and  primary  inference  from 
the  act  of  signing  and  the  formal  publication  of  the  instrument  as  a 
will ;  but  this  inference  may  be  rebutted  by  any  attending  circum- 
stances of  sufficient  force  to  repel  it — as  by  evidence  of  the  weakness 
and  incapacity  of  the  testator  to  make  a  will,  or  of  the  absence  of  in- 
tention on  his  part  actually  to  do  what  he  seems  to  do  by  the  act. 
Proof,  therefore,  satisfactorily  made  of  instructions  given  for  drawing 
the  will — of  his  declarations  of  intentions  as  to  his  testamentary  dispo- 
sitions— of  his  known  affections,  or  dislikes — of  the  position  and  quality 
of  his  estate — of  his  previous  testamentary  intentions,  instructions,  or 
actual  dispositions — of  the  physical  condition  and  infirmities  of  the  tes- 
tator at  the  time  of  making  the  will,  and  especially  of  the  organs 
called  into  action  in  making,  or  understanding  it, — all  these  are  proper 
subjects  of  consideration  on  the  important  question  whether  the  paper 
propounded  as  a  will,  does,  or  does  not  contain  the  real  testamentary 
intentions  and  wishes  of  the  party  who  signed  it,  and  whether  he  had 
knowledge  of  its  contents  when  he  executed  it. 

The  party  setting  up  the  will,  must  prove  that  it  was  made  as  a  will  and 
with  a  will,  by  a  party  capable  of  making  it,  and  that  he  knew  its  con- 
tents ;  but  it  is  not  necessary  to  prove  that  the  will  was  actually  read 
over  to,  or  by  the  testator,  if  there  be  other  evidence  sufficient  to  sa- 
tisfy the  jury  that  he  was  acquainted  with  its  contents.  A  blind  man 
may  make  a  will,  and  a  valid  will  may  be  drawn  by  a  person  taking  a 
beneficial  interest  under  it ;  but  the  blindness  of  the  testator  and  the 
interest  of  the  person  drawing  and  attending  to  the  execution  of  it,  arc 
circumstances  which  should  admonish  the  jury  to  scrutinize  the  evi- 
dence ottered  to  prove  the  testator's  knowledge  of  its  contents.  The 
law  presumes,  in  general,  that  the  will  was  read  by,  or  to  the  testator. 
But  if  evidence  be  given  that  the  testator  was  blind,  or  incapable  from 
any  cause  of  reading  it,  or  if  a  reasonable  ground  be  laid  for  believing 
that  it  was  not  read  to  him,  or  that  there  was  fraud,  or  imposition  of 
any  kind  practised  upon  the  testator,  it  is  incumbent  on  those  who 
would  support  the  will,  to  meet  such  proof  by  evidence,  and  to  satisfy 
the  jury,  either  that  the  will  was  read,  or  that  its  contents  were  known 
to  the  testator. 

The  strict  meaning  of  the  term  onus  probandi  is  this,  that  if  no  evidence 
is  given  by  the  party  on  whom  the  burden  is  cast,  the  issue  must  be 
found  against  him.  In  all  cases  this  onus  is  imposed  on  the  party  pro- 
pounding the  will  ;  but  it  is  in  general  discharged  by  proof  of  capacity 
and  the  fact  of  execution;  from  which  the  law  assumes,  or  infers 
knowledge  of  and  assent  to,  the  contents  of  the  will  on  the  part  of  the 
testator;  and  the  simple  fact  that  the  party  who  prepared  the  will 
takes  a  beneficial  interest  under  it,  dues  nut  of  itself  create  a  contrary 
presumption,  and  call  upon  the  Court  to  pronounce  against  the  will,  un- 
less additional  evidence  is  produced  to  prove  the  knowledge  of  its  con- 
tents by  the  deceased.  It  is  at  best  but  a  suspicious  circumstance 
merely,  of  more  or  less  weight  according  to  the  facts  of  each   purlieu- 


46  SUPERIOR  COURT. 

lar  case,  but  in  no  case  amounting  to  more  than  a  circumstance  of  sus- 
picion, demanding  vigilant  care  and  circumspection,  and  calling  for  full 
and  entire  satisfaction  on  the  part  of  the  Court  that  the  instrument  did 
express  the  real  intentions  of  the  deceased.  Nor  is  it  necessary  in  all 
such  cases,  even  where  the  testator's  capacity  is  doubtful,  that  the  pre- 
cise species  of  evidence  of  the  deceased's  knowledge  of  the  will,  should 
be  in  the  shape  of  instructions  for,  or  reading  over  the  instrument. 
Instructions  for  a  will  being  generally  but  heads  or  suggestions,  the 
proper  amplification  of  them  in  the  more  formal  instrument  is  right ; 
but  if  substantial  variations  are  introduced,  the  jury  must  then  judge 
from  the  evidence  whether  the  deviations  were  made  with  the  know- 
ledge and  consent  of  the  testator.  If  they  were  not  made  known  to 
him — if  the  will  was  not  read  over  by  or  to  him,  or  its  contents  and 
variations  from  the  instructions  were  not  otherwise  explained  to  him, 
then  it  will  not  be  his  will ;  but  if  he  knew  of  the  alterations,  then  he 
approved  and  adopted  them  by  the  execution  of  the  will,  and  the  same 
ought  to  be  confirmed.  The  same  remark  will  apply  generally  to  all 
declarations  made  by  a  testator  in  relation  to  what  was  to  be,  or  what 
had  been  inserted  in  his  will.  If  the  testator  had  knowledge  of  the 
contents  of  the  will,  such  declarations  cannot  be  allowed  to  controvert 
the  more  solemn  expression  of  his  intention  contained  in  the  will  itself; 
but  in  the  absence  of  such  other  evidence  of  knowledge  of  its  contents, 
and  considered  solely  with  a  view  to  the  question  whether  the  will  was 
ever  read  or  explained  to  him,  declarations  satisfactorily  proved  to 
have  been  deliberately  made  by  him  in  good  faith,  of  testamentary  dis- 
positions altogether  different  from  the  dispositions  in  the  will,  will  be 
evidence  to  disprove  the  testator's  knowledge  of  its  actual  contents. 

Tins  was  an  issue  of  devisavit  vel  no7i,  ordered  by  the 
Register  of  Wills  for  New  Castle  County,  to  try  the  va- 
lidity of  the  last  will  and  testament  of  Samuel  B.  Davis, 
deceased. 

The  instrument  of  writing  purporting  to  be  the  last  will 
and  testament  of  the  deceased,  was  as  follows: 

I,  Samuel  B.  Davis,  of  Delamore  Place,  in  the  County  of 
New  Castle,  and  State  of  Delaware,  being  well  in  body,  and 
of  sound  and  disposing  mind  and  memory,  but  advanced 
in  years  and  desirous  of  arranging  my  worldly  affairs,  do 
make  and  declare  this  to  be  my  last  will  and  testament  in 
manner  and  form  following:  Premising,  that  as  I  have 
heretofore  made  in  my  estimation  sufficient  and  fair  pro- 
vision  for  my  elder  children,  my  testamentary  intentions 


DAVIS  et  al.  v.  EOGERS.  47 

are  confined  exclusively  to  my  children  by  my  present 
wife,  and  my  said  wife. 

First.  My  debts,  should  I  leave  any,  and  funeral  ex- 
penses, suitable  to  my  condition,  are  to  be  paid.  I  give 
and  bequeath  to  my  wife  my  household  furniture  :  to  my 
son  Delaware,  the  sword  presented  to  me  by  the  Legisla- 
ture, the  piece  of  statuary,  "Lucretia,"  and  the  two  pic- 
tures, the  "Adoration"  and  the  "Nativity;"  to  my  son 
Sussex,  my  full-length  portrait;  and  to  my  son  Kent,  the 
pair  of  silver  pitchers ;  and  to  my  daughter  Harriet,  the 
residue  of  my  plate,  and  in  case  of  her  death  without  issue, 
the  said  plate  is  to  go  to  her  sister  Victoria  Elizabeth. 

All  my  real  estate,  wherever  situate,  now  in  possession 
or  hereafter  to  be  acquired,  and  all  the  rest  and  residue  of 
my  personal  property,  bonds,  mortgages,  and  other  securi- 
ties and  investments,  I  give,  bequeath,  and  devise  unto 
William  II.  Rogers,  his  heirs  and  assigns,  forever,  upon 
this  special  trust  and  confidence,  to  hold  and  manage  the 
same  without  liability,  except  for  wilful  neglect  or  default, 
for  the  purposes  and  according  to  the  directions  and  pro- 
visions hereinafter  contained ;  that  is  to  say — To  pay  and 
retain  such  sum  or  sums  as  may  be  sufficient  for  taxes,  re- 
pairs, insurance,  and  the  costs,  charges  and  expenses  of 
the  trust,  including  fair  and  liberal  compensation  to  the 
trustee,  for  his  care,  trouble,  and  management. 

Farther.  To  pay  to  my  wife  out  of  the  general  income 
of  my  estate,  or  to  permit  her  to  receive  out  of  any  inter- 
est, income  or  rents,  specifically  to  be  appropriated  to  that 
purpose,  by  agreement  between  her  and  the  trustee,  the 
sum  of  six  hundred  dollars  per  annum,  during  her  natural 
life;  also,  to  suffer  her  to  use,  occupy  and  possess  during 
her  natural  life,  the  dwelling-house  and  lot,  situated  in 
Market  Street  near  Eleventh,  which  I  purchased  from  Ben- 
jamin Webb. 

Further.  To  pay  and  apply  for  the  maintenance,  educa- 
tion and  support  of  my  sons,  the  annual  sum  or  allowance 
of  five  hundred  dollars  each,  until  they  respectively  attain 
the  age  of  twenty-one  years.     And   to  pay  and  apply  for 


48  SUPERIOK  COURT. 

the  maintenance,  education  and  support  of  my  daughters, 
the  annual  sum  or  allowance  of  three  hundred  dollars 
each,  until  they  respectively  attain  the  age  of  sixteen  years. 

After  my  said  sons  shall  respectively  and  severally  have 
attained  the  age  of  twenty-one  years,  and  until  the  period 
when  my  youngest  child  shall  have  attained  the  said  age 
of  twenty-one  years,  the  said  trustee  is  to  pay  and  allow 
to  each  the  sum  of  seven  hundred  dollars  per  annum ;  and 
to  pay  and  apply  for  the  maintenance  and  support  of  my 
daughters,  after  they  shall  severally  and  respectively  have 
attained  the  age  of  sixteen  years,  and  until  the  said  period 
when  my  youngest  child  shall  have  attained  the  age  of 
twenty.one  years,  the  annual  sum  of  four  hundred  dollars 
each. 

Farther.  After  my  youngest  child  shall  have  attained 
the  age  of  twenty-one  years,  all  my  estate,  real  and  per- 
sonal, except  the  said  house  in  Market  Street,  and  such 
fund  or  invested  sum  as  may  be  necessary  and  sufficient 
to  produce  the  annual  amount  payable  to  my  wife  as  afore- 
said ;  aud  also,  such  amount  as  will  be  sufficient  to  defray 
the  remaining  expenses  of  the  trust,  should  my  wife  be 
then  living,  is  to  be  divided  and  distributed,  as  equally  as 
may  be  among  my  children,  and  in  case  of  the  death  of 
either,  the  issue  of  such  child  or  children  is  to  take  the  pa- 
rent's share.  The  division  of  the  real  estate  is  to  be  made 
by  three  judicious  and  impartial  persons,  to  be  appointed 
by  the  Orphans'  Court  of  Xew  Castle  County,  or  should  the 
said  Court  not  make  such  appointment,  by  the  trustee; 
upon  their  certificate  of  allotment,  the  trustee  is  to  con- 
vey to  each  their  several  and  respective  shares;  those  of 
the  daughters  to  be  held  for  their  sole  and  separate  use. 
But  should  the  real  estate  not  be  susceptible  of  division 
into  the  requisite  number  of  shares  without  detriment  to 
the  parties,  it  is  to  be  sold  by  the  trustee,  and  the  pro- 
ceeds, after  deducting  costs,  charges,  expenses  and  com- 
missions, to  be  divided  as  hereinbefore  provided. 

The  personal  estate,  except  as  before  mentioned,  is  to 
be  divided  and  distributed  among  mv  children  as  afore- 


DAVIS  et  al.  v.  EOGERS.  49 

said ;  and  in  such  division  the  differences  arising  from  in- 
equality of  annual  allowances  are  to  be  taken  into  conside- 
ration, so  that  the  principle  of  full  and  final  equalization 
may  apply  in  the  ultimate  distribution.  The  shares  of  the 
daughters  are  to  be  held  or  assigned  to  their  sole  and  sepa- 
rate use. 

Further.  Should  my  wife  refuse  the  provision  made  for 
her,  and  elect  to  take  her  dower,  then  the  division  and  dis- 
tribution of  my  estate  is  to  be  postponed  until  after  her 
decease,  and  the  trustee  is  to  pay,  apply,  and  distribute  the 
income,  rents,  and  profits  of  the  residue  of  my  estate,  after 
deduction  of  such  amount  as  may  be  sufficient  for  repairs, 
taxes,  insurance,  and  the  expenses  of  the  trust  as  herein- 
before specified,  among  my  children  (and  the  issue  of  any 
deceased  child),  after  they  all  shall  have  arrived  at  the  age 
of  twenty-one  years,  in  equal  shares.  Should  my  wife  elect 
to  take  the  provision  herein  made  for  her,  then,  after  her 
decease,  unless  it  should  happen  before  the  period  of  divi- 
sion, as  first  before  mentioned,  the  house  in  Market  Street, 
set  apart  for  her  use,  is  to  be  sold  by  my  trustee,  and  the 
proceeds,  after  deduction  of  expenses  and  commissions,  to 
be  equally  divided  among  my  children  as  aforesaid,  to- 
gether with  the  sum  or  investment  reserved  as  aforesaid, 
for  the  purpose  of  producing  the  annual  sum  to  be  paid 
my  said  wife  as  aforesaid. 

Farther.  It  is  my  desire  that  the  mansion  house  and  pro- 
perty on  which  I  now  reside  should  be  leased  or  rented 
until  the  period  of  final  division  of  my  estate  ;  the  personal 
property  which  may  be  then  at  the  time  of  my  decease  not 
specifically  bequeathed,  will  be  sold  by  my  executor.  It 
is  also  my  wish  that  my  daughters,  between  the  ages  of 
nine  and  sixteen  years,  should  be  sent  to  some  good  board- 
ing school,  to  be  selected  by  my  trustee. 

Any  surplus  income  which  may  be  in  the  hands  of  the 
trustee  is  to  be  invested  by  him  from  time  to  time  in  such 
sums  and  upon  security  as  he  should  deem  expedient. 

And  it  is  my  will  and  meaning  that  my  trustee  shall  not 
be  liable  to  answer  or  make  good  any  loss  or  losses  that 


50  SUPEEIOE  COURT. 

may  happen  in  the  management  of  my  estate,  or  in  invest- 
ing or  reinvesting  any  sum  or  sums  of  money,  unless  the 
same  shall  arise  from  wilful  neglect  or  default. 

The  provision  herein  made  for  my  wife  is  intended  to 
be  in  lieu  of  dower. 

In  the  term  "  children,"  I  intend  to  include  any  child 
hereafter  born. 

And  lastly,  I  do  hereby  nominate,  constitute,  and  ap- 
point the  said  William  II.  Rogers,  to  be  the  executor  of 
this  my  last  will  and  testament,  hereby  revoking  and 
making  void  all  former  and  other  will  or  wills  by  me  at 
any  time  made,  and  declaring  this  to  be  my  last  will  and 
testament. 

In  witness  whereof  I,  the  said  Samuel  B.  Davis,  have 
hereunto  set  my  hand  and  seal,  this  twenty-fifth  day  of 
July,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  fifty-three,  A.D.  1853. 

Samuel  B.  Davis.     [Seal.] 

Signed,  sealed,  published,  and  declared  by  the  above- 
named  testator,  Samuel  B.  Davis,  as  and  for  his  last  will 
and  testament,  in  the  presence  of  us,  who,  in  his  presence 
and  at  his  request,  and  the  presence  of  each  other,  have 
hereunto  subscribed  our  names  as  witnesses  thereto. 

A.  S.  Read, 
Geo.  C.  Gordon, 
Geo.  Harrington. 

The  instructions  from  which  the  will  was  drawn,  and 
which  were  afterwards  offered  in  evidence,  were  as  fol- 
lows : 

July  20,  1853. 

To  Mrs.  Davis  the  sum  of  six  hundred  dollars  per  an- 
num during  her  natural  life,  and  the  house  in  Market 
Street,  between  (purchased 

of  Benjamin  Webb),  during  her  life.  This  annual  allow- 
ance to  1)0  paid  in  semi-annual  payments,  by  trustee,  out 
of  general  income  of  estate,  or  out  of  any  interest,  income, 


DAVIS  et  al.  v.  ROGERS.  51 

or  rents  to  be  specifically  appropriated,  by  agreement, 
between  trustee  and  widow. 

All  my  estate,  real  and  personal,  to  be  distributed  and 
divided  equally  among  my  children  by  my  present  wife, 
such  division  and  distribution  to  be  made  when  my  youngest 
(living)  child  shall  have  arrived  at  the  age  of  twenty-one 
years.  The  boys,  in  the  meantime,  until  they  successively 
arrive  at  the  age  of  twenty-one,  to  have  allowed  and  ex- 
pended for  maintenance  and  education,  the  sum  of  five 
hundred  dollars  each;  the  girls,  until  the  age  of  sixteen, 
for  the  same  purposes,  three  hundred  dollars  each.  After 
the  boys  respectively  arrive  at  twenty-one,  the  annual 
allowance  to  each  is  to  be  increased  to  seven  hundred  dol- 
lars. The  increase  to  the  girls,  as  they  respectively  arrive 
at  sixteen,  to  be  one  hundred  dollars,  making  four  hundred 
per  annum  to  each.  These  annual  allowances  to  be  paid 
to  each  of  my  children  directly  after  twenty-one,  previous 
to  that  time  to  be  expended  for  maintenance  and  educa- 
tion, and  to  be  continued  up  to  the  time  of  final  distribu- 
tion and  division.  The  differences  arising  from  irregu- 
larity of  annual  allowance  to  be  taken  into  consideration 
at  the  period  of  final  division,  and  an  equalization  to  be 
made  out  of  the  personal  estate,  or  in  the  division  of  the 
real  property,  as  may  be  most  expedient. 

The  mansion  house  and  property  on  which  I  now  reside 
to  be  leased  or  rented  until  period  of  division. 

The  division  of  the  real  estate  to  be  made  by  three  dis- 
interested and  judicious  persons,  to  be  appointed  by  Or- 
phans' Court  of  New  Castle  County,  or,  if  they  decline,  by 
trustee.     Distribution  of  personal  to  be  by  trustee. 

The  household  furniture  to  be  given  to  Mrs.  Davis;  the 
plate  to  be  given  to  my  youngest  daughter,  Harriet.*  In 
ease  of  her  death  without  issue,  to  her  sister,  Victoria  Eli- 
zabeth. Pair  of  silver  pitchers  to  Delaware;  if  he  die 
without  issue,  to  be  divided  between  his  brothers. 

The  two  pictures  of  the  "Adoration''  and  the  "  Nati- 
vity," and  the  piece  of  statuary,  "  ,"  together 
with  my  full-length  portrait,  to  he  given  to  my  son  Dela- 


52  SUPERIOR  COURT. 

ware.  All  the  rest  of  my  personal  property  at  mansion 
house  and  farm,  stock,  horses,  farming  utensils,  &c,  to  be 
sold. 

In  case  of  the  death  of  any  child  or  children,  his  share 
or  shares  to  be  divided  equally  among  survivors. 

The  title  of  real  and  personal  property  to  be  vested  in 
trustee,  who  is  to  convey  to  children,  respectively,  after 
division. 

The  female  children  at  or  over  nine  years  of  age,  and 
under  sixteen,  to  be  sent  to  some  good  boarding  school,  to 
be  selected  by  trustee. 

The  sword  presented  by  State  of  Delaware,  to  be  given 
to  Delaware ;  my  portrait,  above  mentioned,  to  Sussex ; 
and  the  pitchers  above  mentioned,  to  Kent, — not  as  above 
directed. 

William  II.  Rogers  to  be  appointed  executor  and  trustee. 

Samuel  13.  Davis. 

In  case  my  wife  should  refuse  the  provision  made  for 
her  and  elect  to  take  her  dower,  then  the  division  and  dis- 
tribution of  my  estate  is  to  be  postponed  until  after  her 
decease,  and  my  trustee  is  in  the  meantime  to  apply  and 
distribute  the  income  of  the  residue  of  my  estate,  after 
deduction  of  such  amount  as  may  be  necessary  to  cover 
expenses  of  the  trust,  taxes,  repairs,  and  insurance,  among 
my  children,  after  they  shall  all  have  arrived  at  the  age  ot 
twenty-one  years,  in  equal  shares. 

Should  my  wife  elect  to  take  the  provisions  herein  made 
for  her,  then,  after  her  decease,  the  house  in  Market  Street, 
set  apart  for  her  use,  is  to  be  sold  by  my  trustee,  and  the 
proceeds,  after  deduction  of  expenses  and  commissions,  to 
be  equally  divided  among  my  children. 

The  share  or  shares  of  real  and  personal  estate  coming 
to  my  daughters,  are  to  be  held  or  assigned  for  their  sole 
and,  separate  use,  free  from  the  control  and  debts  of  any 
husband. 

Samuel  13.  Davis. 

Julv  23,  1853. 


DAVIS  et  al.  v.  ROGERS.  53 

Hon.  George  M.  Dallas,  for  the  executor,  opened  the 
case  on  his  behalf  to  the  jury  and  remarked  :  Colonel 
Samuel  B.  Davis  died  on  the  6th  day  of  September,  1854, 
at  the  very  advanced  age  of  eighty-eight  years,  at  his  resi- 
dence of  Delamore  Place,  in  the  immediate  vicinity  of  Wil- 
mington, leaving  a  widow,  Sally  B.  Davis,  and  five  children, 
of  his  last  marriage,  to  survive  him ;  namely,  New  Castle 
Delaware,  aged  sixteen  years ;  Sussex,  aged  fifteen  ;  Kent, 
aged  fourteen  ;  Victoria  Elizabeth,  aged  ten ;  and  Harriet, 
aged  six  years.  Colonel  Davis  had  been  married  before 
and  left  other  children  to  survive  him ;  but  they  were  not 
concerned  in  the  present  contest.  He  had  led  an  active, 
and,  in  some  respects,  a  prosperous  life,  and  had  been  dis- 
tinguished in  the  public  service.  The  Legislature  of  Dela- 
ware had  presented  him  a  sword  as  a  testimonial  of  the 
respect  entertained  for  him.  He  was  the  owner  of  a  valu- 
able real  estate,  and  also  of  a  considerable  personal  estate. 
Although  an  old  man,  he  was  possessed  of  unusual  vigor 
both  of  body  and  mind,  with  the  exception  of  his  sight, 
which  was  impaired  by  disease  as  well  as  age,  and  his 
hearing,  which  was  also  affected.  Still  he  was  able,  with 
aid  of  glasses,  to  read  and  write;  and  the  proof  will  show7 
that  he  was  wise  and  sagacious  in  matters  of  business  to 
the  last.  His  will  was  executed  on  the  25th  of  July,  1853, 
about  a  year  before  his  death,  after  making  due  and  de- 
liberate preparation  for  it;  for  he  left  with  his  friend,  Wil- 
liam H.  Rogers,  written  instructions  on  two  different  days, 
the  20th  and  23d  days  of  July,  for  this  purpose.  Mr.  Rogers 
wrote  the  will,  and  on  that  day  took  it  to  the  house  of  Colo- 
nel Davis,  taking  with  him  Mr.  George  Gordon  and  Mr. 
Harrington  to  witness  it.  They  found  Colonel  'Davis  in 
the  parlor  with  his  children.  Mr.  Harrington,  who  was  a 
stranger,  was  introduced,  and,  upon  it  being  suggested 
that  Mr.  Harrington  was  not  a  resident  of  the  State,  Colo- 
nel Davis  sent  his  son  Sussex  for  Mr.  Alexander  Read. 
He  then  intimated  a  wish  to  have  a  private  interview  with 
Mr.  Rogers  respecting  the  will.  The  other  gentlemen 
withdrew  and  walked  the  porch,  the  door  being  open.    The 


54  SUPERIOR  COURT. 

conference  with  Mr.  Rogers  was  had;  Mr.  Rogers  read 
the  will  over  to  Colonel  Davis  distinctly  and  deliberately; 
waited  for  any  suggestion  to  be  made ;  one  was  made  and 
carried  out  by  the  insertion  of  a  word  which  now  appears 
on  the  face  of  the  will.  Mr.  Read,  for  whom  Sussex  Davis 
had  been  sent,  arrived  about  the  time  or  just  after  this 
interview  took  place,  and  the  other  witnesses  had  been 
called  in.  Colonel  Davis  requested  Sussex  to  bring  pen 
and  ink,  and  then  formally  executed  the  paper  and  de- 
clared it  to  be  his  last  will  and  testament.  He  then  handed 
the  will  to  Mr.  Rogers,  who  put  it  in  his  pocket,  and  the 
next  morning  put  it  in  an  envelope  with  a  proper  indorse- 
ment, and  deposited  it  in  the  Bank  of  Delaware.  After 
he  had  executed  the  will,  Colonel  Davis  jocularly  asked 
some  of  the  party  if  they  would  not  examine  as  to  his 
mental  competency,  and  related  certain  anecdotes,  and 
made  other  remarks,  showing  mental  vigor  and  capacity. 

He  then  read  the  will  in  evidence,  and  proceeded  to  call 
the  subscribing  witnesses. 

George  C.  Cordon,  one  of  the  subscribing  witnesses,  tes- 
tified that  he  was  acquainted  with  Colonel  Davis,  but  not 
intimately,  and  proved  his  signature  as  a  witness  to  the 
will.  On  the  day  the  will  was  executed,  Mr.  Rogers  asked 
him  to  ride  out  with  him  to  Colonel  Davis's  to  witness  the 
execution  of  it,  and  he  did  so  with  him  and  Mr.  Harring- 
ton, a  brother-in-law  of  Mr.  Rogers,  in  a  carriage,  procured 
by  him  for  the  purpose.  When  they  reached  the  residence 
and  entered  it  they  found  Colonel  Davis  seated,  with  some 
of  his  children  about  him,  in  the  hall.  The  weather  was 
warm  and  the  doors  were  open.  Mr.  Harrington  was  in- 
troduced, and  the  object  of  the  visit  was  referred  to.  Mr. 
Rogers  suggested  to  Colonel  Davis  that,  as  Mr.  Harrington 
resided  out  of  the  State,  he  had  better  send  for  one  of  his 
neighbors  also  as  a  witness.  Mr.  Alexander  S.  Read,  who 
lived  near,  was  sent  for,  and  the  Colonel  requested  Mr. 
Harrington  and  himself  to  retire,  as  he  desired  to  have  a 
private  interview  with   Mr.  Rogers  on  the  subject  of  the 


DAVIS  et  al.  v.  ROGERS.  55 

will,  and  they  stepped  out  upon  the  portico,  where  they 
walked  for  some  minutes.  On  the  approach  of  Mr.  Read 
they  were  again  invited  back  into  the  hall,  and  Colonel 
Davis  called  for  pen  and  ink,  which  were  brought.  He 
then  took  his  seat  at  the  table  on  which  the  will  was  placed, 
wiped  his  spectacles,  and  wrote  his  name  to  it,  and  they 
signed  their  names  to  it  as  subscribing  witnesses  in  his 
presence.  lie  handed  it  over  to  Mr.  Rogers,  and  they 
returned,  leaving  Mr.  Read  at  Colonel  Davis's. 

There  was  ample  time,  whilst  they  were  absent  from 
the  hall,  out  on  the  portico,  for  the  will  to  have  been  read. 
After  the  execution  of  the  will,  Colonel  Davis  had  some 
conversation  with  Mr.  Harrington  about  his  picture  and 
other  matters.  The  first  recollection  he  had  of  seeing  the 
will,  it  was  on  the  table  before  Colonel  Davis;  he  took  no 
means  to  ascertain  if  the  testator  knew  the  contents  of  it, 
as  he  considered  himself,  and  so  acted,  as  a  formal  witness 
to  the  will  merely.  His  impression  was  that  it  was  a  clear 
day;  it  was  warm  weather,  and  in  the  month  of  July,  and 
was  between  five  and  six  o'clock  in  the  afternoon.  lie 
remembered  that  Colonel  Davis  had  and  used  his  spec- 
tacles at  the  time  of  executing  the  will.  He  believed  him 
to  be  at  that  time  in  the  full  possession  of  his  mental  facul- 
ties, and  as  competent  to  make  a  will  as  he  ever  was. 

Alexander  S.  Head,  another  subscribing  witness,  testified 
that  he  was  called  upon  on  the  day  spoken  of  by  a  mes- 
senger from  Colonel  Davis  to  attend  upon  him  on  some 
matter  of  business  and  went  immediately;  as  he  approached 
the  house  he  observed  Mr.  Gordon  and  Mr.  Harrington 
promenading  the  piazza,  who  entered  the  hall  as  he  reached 
the  house.  He  followed,  and  was  introduced  to  Mi-.  Har- 
rington in  the  hall.  After  some  formal  conversation  they 
proceeded  to  the  back  room  of  the  hall,  and  met  Colonel 
Davis  and  Mr.  Rogers,  who  were  coming  out  of  the  ad- 
joining parlor.  Colonel  Davis  called  for  a  pen  and  ink, 
which  were  brought,  and,  when  he  took  his  seat  at  the 
table,  he  called  for  his  other  spectacles,  which  his  son  Sus- 


56  SUPERIOR  COURT. 

sex  brought  to  him ;  he  also  asked  for  a  small  stool  to  rest 
his  foot  upon,  and  that  was  brought  to  him,  and  he  then 
signed  the  will,  and  they  subscribed  it  as  witnesses.  His 
mind  at  that  time  was  good,  and  there  was  no  defect  what- 
ever in  it.  He  was  an  ardent  and  positive  man ;  lie  would 
not  rank  him  high  as  a  man  of  business;  his  mental  facul- 
ties were  not  impaired. 

After  the  will  was  executed  they  remained  in  conversa- 
tion for  some  time,  but  he  did  not  remember  the  topics 
particularly  on  which  they  conversed.  Colonel  Davis  used 
two  pairs  of  spectacles,  one  for  distant,  and  the  other  for 
objects  nearer  to  him.  The  counsel  had  misapprehended 
him  if  he  understood  him  as  meaning  to  say  that  Colonel 
Davis  had  on  two  pairs  of  spectacles  when  he  signed  the 
will.  lie  was  eighty-seven  or  eighty-eight  years  of  age  at 
the  time.  His  faculties  had  not  been  materially  impaired 
by  age,  and  his  memory  was  good.  His  residence  was  a 
hundred  and  twenty  to  a  hundred  and  fifty  yards  from  Colo- 
nel Davis's,  and  he  went  in  a  minute  from  the  time  the 
messenger  came  for  him,  and  it  would  take  him  about 
three  minutes  to  walk  it.  The  will  was  not  read,  nor  were 
its  contents  stated  to  Colonel  Davis  in  his  presence.  Mr. 
Rogers  took  it  after  it  was  signed. 

Mr.  Dalits  then  read  in  evidence  the  deposition  of  George 
Harrington,  the  other  subscribing  witness,  taken  on  com- 
mission out  of  the  State.  The  substance  of  it  was  that  he 
went  out  to  Colonel  Davis's,  at  the  request  of  Mr.  Rogers, 
to  witness  the  execution  of  a  will  ;  was  presented  to  Colonel 
Davis,  and  withdrew  to  the  porch,  as  stated  by  the  other 
witnesses.  He  and  Mr.  Gordon  re-entered  the  room  to- 
gether, and  Mr.  Rogers  and  Colonel  Davis  were  together. 
Mr.  Rogers  took  a  paper,  the  will,  went  to  the  sideboard  and 
wrote  some  word  or  two  upon  it,  returned  to  Colonel  Davis 
and  read  to  him  apparently  what  he  had  written.  Mr. 
Read  eanic  in,  and  directly  Colonel  Davis  signed  the  will 
and  published  it  as  his  last  will.  Colonel  Davis  then  re- 
marked. "  Gentlemen,  I  will  thank  vou  to  examine  me  and 


DAVIS  et  al.  v.  ROGERS.  57 

ascertain  whether  I  am  of  sound  mind."  He  then  entered 
into  a  general  conversation ;  mentioned  a  fall  he  had  got 
the  day  before ;  went  to  the  place  where  the  accident  hap- 
pened, and  described  how  it  happened.  We  returned  to 
the  room  and  again  entered  into  conversation,  which  was 
quite  lengthy,  in  the  course  of  which  he  related  anecdotes 
of  Commodore  Barney  and  others.  The  will  was  executed 
in  what  he  would  deem  the  front  room,  near  the  folding 
doors,  on  a  table  which  was  brought  by  Colonel  Davis's 
son.  We  were  there  an  hour  and  a  half  or  two  hours.  He 
talked  about  his  sword  and  his  portrait,  and  about  politics. 
He  said  he  was  not  too  old  to  be  Governor,  but  other  people 
thought  he  was,  and  they  were  sap  heads.  His  conversa- 
tion was  intelligent  and  interesting.  His  recollection  of 
the  old  events  of  which  he  spoke  was  fresh ;  and  he  im- 
pressed me  with  a  conviction  that  his  mind  was  strong  and 
his  will  decided.  I  thought  it  then  perfectly  sound,  and 
his  memory  remarkable.  Witness  saw  this  envelope  (B), 
or  one  like  it,  deposited  in  bank  by  Mr.  Rogers.  Prior  to 
the  execution  of  the  will  he  saw  a  paper  in  Mr.  Rogers' 
office  indorsed,  "Instructions  relative  to  the  will  of  Colonel 
Davis;"  it  was  this  paper  (1),  or  one  like  it;  a  week  or  ten 
days  before  the  execution  of  the  will  he  saw  Colonel  Davis 
in  Mr.  Rogers'  office  ;  he  came  in  with  one  or  two  children 
and  then  sent  them  out,  saying  he  had  some  business  with 
Mr.  Rogers,  when  witness  also  retired. 

Recurs  to  the  execution.  It  was  three  or  four  minutes 
after  Mr.  Gordon  and  witness  re-entered  the  room  before 
Mr.  Read  came  in.  The  place  where  Colonel  Davis  fell 
was  at  the  end  of  a  passage  leading  from  the  back  room ; 
there  was  a  window  and  stairs.  He  said  he  forgot  he  was 
in  the  passage,  and  thought  he  was  at  the  window  in  his 
own  room,  and,  turning,  fell  down  the  stairs.  He  had 
been  cautioned  about  the  danger  of  such  an  accident. 

Mr.  Dallas  next  called  Mr.  Rogers,  the  executor  and 
trustee  appointed  in  the  will,  and  tendered  him  as  a  wit- 
ness on  behalf  of  it. 

5 


58  SUPERIOR  COURT. 

Mr.  H.  Winter  Davis,  for  the  reviewers,  desired  the 
opinion  of  the  Court  on  the  following  point:  The  pro- 
pounder  of  the  will  had  examined  the  testamentary  wit- 
nesses. On  our  side  we  admit  the  prima  facie  execution  of 
the  instrument.  Of  course  the  other  side  opens  with  the 
testamentary  evidence  of  the  formal  execution  of  the  will, 
hut  as  the  onus  of  invalidating  and  disproving  it  rested 
on  the  side  of  the  reviewers,  it  was  premature,  it  occurred 
to  him,  to  admit  Mr.  Rogers  to  testify  at  this  stage  of  the 
case. 

Mr.  Dallas :  The  other  side  misapprehended  the  extent 
to  which  he  proposed  to  examine  Mr.  Rogers  as  a  witness; 
he  merely  proposed  to  examine  him  as  to  the  execution 
of  the  instrument,  and  he  denied  that  upon  this  point  and 
for  this  purpose,  he  was  restricted  to  the  testamentary 
witnesses. 

By  the  Court,  Harrington,  Chief  Justice:  The  propou riders 
of  the  will  are  to  prove  the  factum  ;  and  then  the  reviewers 
having  the  burden  of  attacking  it,  would  have  the  open- 
ing and  conclusion.  Such  has  been  the  uniform  practice. 
But  proof  of  the  factum  is  not  necessarily  confined  to  the 
subscribing  witnesses  of  the  instrument,  or  a  will  could 
not  be  proved  at  all,  if  they  should  ignore  their  signatures, 
or  impeach  the  validity  of  it.  Any  other  witness,  how- 
ever, called  for  such  purpose,  must  be  confined  in  his  evi- 
dence to  the  execution  of  it  merely.  To  go  beyond  this 
in  the  present  instance,  at  this  stage  of  the  case,  when  the 
will  is  prima  facie  proved,  is  unnecessary,  and  would  be 
but  to  anticipate  and  meet  objections  yet  to  be  made  to  it. 

Mr.  D.  M.  Bates,  objected  to  the  admissibility  of  Mr. 
Rogers  as  a  competent  witness  for  any  purpose,  on  the 
ground  of  interest  in  the  event  of  the  suit : 

First,  because  he  holds  at  present  a  pecuniary  office  of 
profit  and  emolument  under  the  will,  which  he  will  retain  or 
lose  by  the  result  of  this  case  ;  namely,  the  office  of  executor. 


DAVIS  et  al.  v.  ROGERS.  59 

This  was  the  distinction  between  the  office  of  executor  in 
this  country  and  in  England.  In  England  it  is  not  an 
office  of  emolument.  In  that  country  unless  the  executor 
takes  a  beneficial  interest  under  the  will,  as  a  legacy  for 
instance,  without  which  he  there  takes  or  derives  no  ben- 
efit from  it,  he  is  competent.  But  in  that  country,  if  he 
takes  a  beneficial  interest  under  the  will,  he  is  not  a  com- 
petent witness  in  favor  of  the  will,  unless  it  be  in  case  of 
a  question,  or  contest  between  heir  and  devisee,  which 
relates  to  the  realty ;  and  in  which  case,  he  admitted,  he 
was  a  competent  witness  for  the  will,  because,  the  legacy 
being  payable  out  of  the  personal  estate,  he  has,  as  execu- 
tor and  legatee,  no  interest  or  concern  in  regard  to  the 
real  estate.  Besides,  under  their  "practice  the  executor  re- 
ceives no  commissions  for  administering  the  estate,  and 
unless  he  takes  a  legacy  under  the  will,  he  takes  no  pecu- 
niary or  beneficial  interest  under  it.  But  in  this  country 
the  practice  is  different.  Here  he  always  receives  commis- 
sions, and  it  had  been  decided  that  he  was  not  for  this 
reason  competent.  16  Barb.  JR.  198;  Burretx.  Silliman; 
Anderson  et  al.  v.  Nepp,  11  Serg.  $  Rawle,  208 ;  Gepharl  v. 
Gephart,  15  Serg.  £  Rawle,  235 ;  Tucker  v.  Tucker,  5  Ire- 
dell, 161 ;  Taylor  v.  Taylor,  1  Richardson's  R.  531.  In  all 
these  cases  the  executor  was  excluded  as  a  witness  for  the 
will,  on  the  ground  that  he  was  entitled  to  commissions, 
and  held  an  office  of  profit  and  emolument  under  the  will. 
Secondly,  on  the  ground  that  he  takes  a  direct  interest 
under  the  will  in  the  estate,  by  reason  of  the  compensa- 
tion provided  for  him  in  the  will  as  the  trustee.  A  trustee 
by  law  is  entitled  to  no  compensation,  unless  by  specific 
directions  in  the  will.  Willis  on  Trustees,  ?n.  p.  189,  10 
Lnw  Libr. ;  Green  v.  Winter,  1  Johns  C.  R.  27 ;  State  v. 
Piatt,  4  Harr.  165.  It  matters  not  what  you  call  the  gift 
or  bequest  in  this  case,  whether  you  call  it  a  legacy,  com- 
missions, or  anything  else,  it  is  the  same,  and  creates  and 
confers  a  beneficial  interest  under  the  will.  In  the  case  of 
a  simple  or  naked  trustee  without  compensation,  who 
merely  holds  for  the  use  and  benefit  of  another,  and  sub- 


60  SUPERIOR  COURT. 

ject  to  his  order  and  disposition  of  the  estate,  he  is  compe- 
tent ;  but  a  special  trustee  is  not,  because  the  first  has  no 
interest  in  the  estate,  whilst  the  latter  has  an  interest  in  it. 
Will,  on  Trustees,  228 ;  Allison  v.  Allison,  1  Hawks'  JR. 

And  thirdly,  on  the  ground  that  the  executor  is  a  party 
to  this  cause,  and,  though  not  absolutely  liable,  may  be- 
come liable  for  costs;  and  is  therefore  incompetent  as  a 
witness  in  the  case.  Dean  v.  RusseU,  1  JEccl.  JR.  411 ;  Jack- 
son v.  Whitehead,  Idem,  478. 

If  an  executor  can  in  any  event  be  liable  for  costs  (and 
we  do  not  know  what  decision  may  be  made  on  the  ques- 
tion of  costs  in  this  case  by  the  register),  he  has,  it  seems 
to  us.  such  an  interest  in  the  result  as  will  exclude  him  as 
a  witness.  He  may  become  liable,  aud  be  held  personally 
responsible  for  a  violation  of  his  duty  as  such — for  a  devas- 
tavit ;  and  he  may  be  held  liable  even  for  attempting  to 
prove  a  will  that  was  not  the  will  of  the  testator. 

Mr.  Dallas :  It  has  been  well  said  that  this  is  not  a  pro- 
ceeding inter  partes,  but  a  proceeding  in  rem.  There  are 
properly  no  parties — no  plaintiff,  no  defendant — in  the 
case.  It  is  simply  a  question  whether  the  instrument  be- 
fore us  is  or  is  not  the  last  will  and  testament  of  Samuel 
B.  Davis.  Now,  we  are  in  danger  of  being  misled  by 
losing  sight  of  a  fundamental  principle.  The  interest 
which  will  exclude  the  witness  is  not  a  matter  of  feeling, 
or  an  interest  which,  as  a  friend  or  a  man  of  hon'or,  he 
may  feel  in  the  result.  Were  the  witness  proposed  a 
brother  of  the  deceased,  or  of  the  widow  of  the  deceased, 
with  every  feeling  embarked  in  the  issue  of  the  ease,  it 
would  not  disqualify  him.  An  advocate  in  a  cause  is  not 
for  this  reason  disqualified.  A  consignee  of  goods,  though 
deriving  profit  from  the  consignment,  may  he  a  witness  in 
regard  to  it.  I  admit  that  a  direct  and  positive  interest 
will  disqualify  a  witness ;  but  it  must  be  a  certain,  fixed, 
and  definite  interest  in  the  result  of  the  cause,  and  not  a 
contingent,  prospective,  or  possible  interest  merely.  2 
Stark  Ec.   74") ;  4  Harr.  It.  206.     But  the  interest  of  the 


DAVIS  et  al.  v.  EOGERS.  61 

witness  here  offered  is  contingent,  and  depends  upon 
others ;  and  in  such  a  case  it  goes  only  to  the  credit,  and 
not  to  the  competency.  Again,  it  is  not  a  compensatory 
interest  which  disqualifies  an  executor  or  testamentary 
trustee,  but  an  interest  in  the  dispository  part  of  the  will, 
as  a  legacy,  for  instance.  2  Stark  JEv.  1275 ;  1  Wm.  Black's 
Rep.  365;  12  East,  250;  12  Mass.  Rep.  360. 

A  compensatory  or  remunerative  interest,  for  services 
performed,  is  not  what  is  termed  a  beneficial  interest  under 
the  will.  The  decision  in  the  case  of  Snyder  v.  Bulls,  17 
Penna.  Rep.  54,  pronounced  by  Chief  Justice  Gibson,  a 
man  of  lofty  genius  and  rare  judicial  ability,  fully  sustains 
this  principle.  The  law  of  this  State,  as  well  as  of  Penn- 
sylvania, regards  the  laborer  as  worthy  of  his  hire,  and  his 
compensation  as  such  is  not  such  a  beneficial  interest  as 
will  exclude  an  executor  from  testifying.  Unlike  the 
legatee,  he  is  not  the  testator's  beneficiary,  but  is  presumed 
to  receive  nothing  which  he  has  not  earned  by  his  services. 
Whatever  interest,  therefore,  he  may  have  in  such  a  case, 
goes  only  to  his  credit,  and  not  to  his  competency. 

There  is  and  can  be  no  liability  for  costs  in  this  case  on 
the  part  of  the  executor.  It  was  so  ruled  in  the  case  of 
Ross  v.  Hearn,  4  Harr.  101 ;  8  Conn.  Rep.  254  ;  1  Gratt. 
Rep.  18.  The  executor,  though  a  party  defendant,  and 
though  entitled  to  commissions,  is  competent  as  a  witness. 
So  held  in  the  case  of  John  Randolph's  will.  Mod.  Prob. 
of  Wills,  469,  474.  The  case  cited  from  16  Barb.,  on  the 
other  side,  does  not  support  their  position  ;  for  in  that  case 
the  executor  was  directly  interested. 

On  the  second  point  made  by  the  other  side  I  will  say, 
that  the  bequest  is  not  a  gift;  it  is  not  a  devise ;  it  is  not 
a  legacy;  but  a  remuneration  for  services  rendered,  and  is 
honorary  in  its  character.  If  the  commissions  would  affect 
the  propriety  of  his  admission  as  a  witness  on  the  score  of 
policy,  the  effect  would  be  to  destroy  the  right  to  the  com- 
missions, and  not  to  destroy  the  will  by  rendering  the 
witness  incompetent. 


62  SUPERIOR  COURT. 

Mr.  Davis:  The  fact  that  this  is  a  proceeding  in  rem,  and 
not  inter  partes,  cannot  operate  in  favor  of  the  admission  of 
Mr.  Rogers  as  a  witness  to  support  the  will.  The  question 
is,  has  he  such  a  direct  and  pecuniary  interest  in  the  result 
of  this  case  as  will  exclude  him  as  a  witness?  It  is  a  pro- 
ceeding in  rem  to  this  extent ;  it  binds  every  one  as  to  its 
effect  on  the  instrument,  which  it  either  establishes  or 
destroys ;  it  binds  the  heirs  at  law  as  well  as  the  widow, 
though  the  proceeding  here  is  only  by  the  widow.  Never- 
theless, because  it  is  not  a  proceeding  inter  partes,  the  ar- 
gument of  the  other  side  is,  that  the  heirs  are  competent 
witnesses  to  destroy  it,  which  reduces  the  argument  ad 
absurdum.  In  England  no  commissions  are  allowed  an 
executor,  and  therefore  the  cases  cited  from  that  country 
do  not  apply  in  this;  and  yet  it  is  held  there  that  an  inte- 
rest, such  as  a  legacy,  will  disqualify  the  executor  to  testify. 

"We  contend  that  the  witness  in  this  case  is  the  testator's 
beneficiary,  and  more  so  than  he  would  be  as  a  mere 
legatee,  because  he  takes  the  whole  fund,  paramount  to 
debts  and  legacies,  and  every  other  disposition  of  them,  so 
far  as  his  commissions  are  concerned,  although  they  may 
be  compensatory  in  their  character.  "We  therefore  main- 
tain that  an  interest  as  executor,  entitled  to  commissions 
by  law  or  usage  here,  is  a  disqualifying  interest;  that  the 
addition  of  an  express  bequest  of  commissions  magnifies 
this  interest;  and  the  addition  of  a  substantial  bequest  and 
devise  of  a  large  estate,  real  and  personal,  to  him  as  a 
trustee,  puts  the  interest  beyond  all  question.  To  ordinary 
comprehension  the  question,  whether  Mr.  Rogers  is  or  is 
not  interested  in  the  establishment  of  this  will,  does  not 
admit  of  a  doubt;  if  it  be  otherwise  in  a  judicial  sense,  it 
is  for  the  other  side  to  show  some  reason  or  authority  for 
it.  There  is  some  conflict  in  the  cases  on  this  point,  but 
the  question  arises  in  most  of  them  in  reference  to  the 
admissibility  of  attesting  witnesses  to  the  will  under  such 
circumstances,  and  in  which  the  actual  question  was, 
whether  the  witness  or  the  will  was  to  be  destroyed  ;  but 
Mr.  Rogers  is  not  an  attesting  witness  to  the  will  in  this 


DAVIS  et  al.  v.  ROGERS.  63 

case,  necessary  to  prove  the  factum  of  it,  but  is  offered  as 
a  general  witness  to  sustain  it.  The  case  cited  and  mainly 
relied  on,  of  Snyder  v.  Bulls,  from  17  Penna.  Rep.  54,  was 
the  case  of  an  attesting  witness.  The  case,  I  admit,  does 
assume  the  position  (in  which  it  stands  alone,  however,  in 
the  American  courts),  that  the  interest  of  an  executor,  en- 
titled by  law  to  certain  commissions,  is  not  a  disqualifying 
interest ;  and  on  this  point  it  is  itself  controverted  by  other 
Pennsylvania  decisions.  The  argument  that  this  is  not  a 
disqualifying  interest  because  it  is  compensatory  merely, 
necessarily  resolves  itself  into  this,  that  any  one  may  prove 
himself  entitled  to  an  office  though  he  derives  fees,  com- 
pensation, or  salary  under  it;  and  any  one  may  prove  a 
contract  under  which  he  is  to  render  service  and  receive 
compensation,  because  he  performs  the  service  for  the 
compensation.  Xow  the  commissions  in  this  case  must 
amount  to  several  thousand  dollars,  and  yet  are  we  to  be 
told  that  if  the  testator  had  bequeathed  to  the  proffered 
witness  a  legacy  of  five  hundred  dollars,  he  would  not  have 
been  competent ;  but,  given  as  a  compensation  in  eight  or 
ten  times  the  amount,  it  is  no  objection  to  his  compe- 
tency? But,  beyond  all  these  objections,  the  witness  is 
furthermore  incompetent  and  inadmissible,  because  he  is 
directly  interested  as  a  party  to  the  suit, — the  sole  party, 
so  far  as  we  may  judge  from  appearances,  interested,  or 
active  in  setting  up  the  will. 

By  the  Court,  Harrington,  Ch.  J.  :  In  expressing  the 
opinion  we  have  formed  on  the  question  which  has  been 
so  fully  and  ably  discussed  at  the  bar,  we  shall  not  refer 
to  the  facts  which  are  supposed  to  present  a  disqualifying 
interest  in  the  witness,  further  than  is  necessary  to  raise 
the  question  of  evidence;  nor  shall  we  refer  to  many  of 
the  points  ruled  in  the  numerous  and  somewhat  conflicting 
eases  cited.  It  will  be  enough  to  state  our  present  view 
of  the  principles  which  govern  the  ease  without  attempting 
to  distinguish  or  reconcile  the  cases. 

The  general  principle  is  a  common  law  maxim,  that  no 


64  SUPERIOR  COURT. 

one  who  is  interested  in  the  event  of  a  cause,  can  be  heard 
as  a  witness  in  the  trial  of  that  cause.  Applying  that  prin- 
ciple to  the  case  of  an  executor  called  to  support  the  will, 
we  may  assume  that  the  English  courts  regard  him  as  a 
competent  witness,  because,  according  to  their  system,  the 
executor  takes  no  interest  under  the  will,  being  entitled 
as  such  to  no  compensation  by  way  of  commissions,  or 
otherwise.  He  is  regarded  there  as  taking  an  onerous 
office  rather  than  a  desirable  employment.  But  when 
he  takes  a  beneficial  interest  under  the  will,  as  by  a  legacy 
or  bequest,  he  has  been  held  even  there  to  be  incompetent 
on  the  general  principle  of  exclusion.  But  in  the  United 
States,  in  most,  if  not  all  of  them,  it  is  otherwise  as  to  com- 
pensation. In  them  the  executor  is  entitled  to  his  com- 
missions by  the  statute  law,  and  this  interest  has  in  most 
cases  been  held  to  exclude  the  executor  from  being  a  wit- 
ness to  support  the  will.  In  others,  as  in  the  cases  cited 
from  Pennsylvania  Reports,  with  the  deserved  weight  of 
Chief  Justice  Gibson's  opiuion,  the  right  to  legal  compen- 
sation, which  attaches  by  force  of  the  statute  to  the  office 
of  executor,  does  not  disqualify  him.  But  in  this  case,  as 
indeed  in  most  of  the  cases,  when  the  effort  has  been  to 
introduce  the  executor  as  a  witness,  his  admissibility  was 
essential  to  the  probate  of  the  will,  he  being  one  of  the 
testamentary  witnesses  necessary  to  constitute  the  number 
required  by  the  statute  of  wills.  It  therefore  raised  a 
question  of  public  policy  in  reference  to  the  construction 
of  the  statute,  and  the  necessity  of  admitting  the  executor 
as  a  competent  witness  in  that  instance.  The  witness  now 
offered  is  not  an  attesting,  but  is  called  as  a  general  wit- 
ness to  sustain  the  will.  He  is  named  by  it  executor  and 
trustee;  entitled,  in  the  former  character,  to  legal  compen- 
sation, and,  in  the  latter,  to  compensation  bequeathed  by 
the  will;  together  with  the  estate,  real  and  personal,  of 
the  deceased,  of  which  he  is  made  the  "  master,"  as  trustee 
for  the  widow  and  children. 

In  this  State  there  has  been  no  adjudication  of  this  pre- 
cise question.     In  the  ease  of  Sutton  v.  Sutton,  5  Harr.  Rep. 


DAVIS  et  al.  v.  KOGERS.  65 

459,  which  was  an  issue  of  devisavit  vel  now,  the  contest  was 
respecting  the  codicils  of  the  will.  One  of  the  executors, 
who  took  an  interest  under  the  codicils,  was  called  as  a 
witness  and  rejected;  the  other  executor,  who  took  no 
interest  under  the  codicils,  was  admitted ;  they  were  both 
appointed  executors  by  the  will,  and  neither  by  the  codi- 
cils. This  case  has  been  spoken  of  as  ruling  the  principle 
that  a  mere  executor,  having  no  additional  interest  under 
the  will,  might  be  a  witness  to  support  it;  but  the  case 
does  not  rule  that  point.  The  witness,  supposing  he  had 
an  interest  as  executor,  was  still  an  executor,  whether  the 
codicils  were  supported  or  not.  He  therefore  had  no  in- 
terest whatever  in  the  result  of  the  case.  But  the  other 
executor  who  took  an  interest  under  the  codicils,  was  ex- 
cluded. So  far,  then,  as  the  case  is  an  authority  on  the 
point,  it  is  against  the  admission  of  an  executor  with  an 
interest.  If  the  cases  cited  can  be  reconciled,  it  must  be 
on  the  principle  that  a  mere  executor  derives  his  interest 
under  the  law,  which  allows  his  commissions;  whilst  an 
executor  with  a  legacy,  derives  his  interest  as  to  the  latter 
solely  from  the  will.  We  are  not  prepared,  however,  to 
rule  this  distinction.  One  of  my  brethren  thinks  it  is  not 
a  sound  distinction ;  and  if  it  were  necessary  to  decide  it, 
the  inclination  of  all  our  minds  is  to  regard  the  compensa- 
tion as  a  disqualifying  interest,  whether  derived  from  ex- 
press provision  in  the  will,  or  through  the  law  allowing 
commissions  to  executors.  It  would  seem  like  a  refined 
distinction  to  say  that  an  executor,  with  a  compensation 
of  one  thousand  dollars  fixed  by  the  will,  has  an  interest; 
whilst  one  who  has  commissions  to  the  same  amount,  fixed 
by  law,  has  no  interest  in  the  question  whether  it  shall  be 
sustained  or  not, 

But  in  this  case  the  witness  is  not  only  an  executor,  en- 
titled to  legal  commissions,  but  he  is  also  a  trustee,  to  whom 
the  legal  estate  is  devised  in  trust,  with  an  express  provi- 
sion in  the  will  for  fair  and  liberal  compensation  as  such. 
We  think  this  constitutes  a  disqualifying  interest,  and  we 
therefore  rule  out  the  evidence. 


66  SUPERIOE  COUET. 

Mr.  George  Browne  then  opened  the  case  on  the  part  of 
the  contestants  of  the  will,  to  the  jury. 

We  do  not  deny  that  the  parties  contesting  the  validity 
of  the  instrument  in  question,  are  bound  by  the  will  of 
the  decedent,  on  the  contrary  we  wish  you  to  carry  out  his 
intentions;  but  while  we  admit  that  this  paper  writing 
was  signed  and  executed  by  him,  we  deny  that  he  knew 
what  it  contained,  or  that  it  expresses  his  intentions. 

I  will  give  you  a  brief  account  of  Colonel  Davis.  He 
was  born  at  Lewes  in  this  State,  September  25,  1770,  and 
died  September  6,  1854,  in  the  84th  year  of  his  age.  In 
youth  he  was  a  sailor,  and  at  an  early  period  of  his  life  he 
emigrated  to  Louisiana,  prior  to  its  cession  to  the  United 
States,  and  purchased  lands  at  a  comparatively  low  price. 
In  the  course  of  time  that  cession  followed,  population 
flowed  in,  his  plantations  rose  in  value,  he  sold  them  and 
after  the  lapse  of  several  years  he  returned  to  the  State,  a 
nian  of  fortune.  He  married  first  a  French  lady  in  Lou- 
isiana, by  whom  he  had  one  son,  General  Horatio  Davis, 
now  of  New  Orleans,  and  who  is  represented  by  his  son 
now  in  Court,  as  one  of  the  contestants.  After  the  death 
of  his  first  wife,  Colonel  Davis  married  again,  and  had  by 
his  second  wife  five  children,  whose  names  have  already 
been  stated,  and  who,  with  their  mother,  are  also  contest- 
ants of  the  will;  so  that  all  the  family  are  against  this  will, 
and  no  one  for  it,  except  the  executor  and  trustee  ap- 
pointed in  it. 

In  1837  Colonel  Davis  became  afflicted  with  cataract  in 
both  his  eyes,  from  which  he  became  almost  blind.  After 
an  operation  he  partially  recovered  his  sight,  so  as  to  see 
how  to  make  marks,  but  not  to  write.  Prior  to  the  month 
of  June,  1850,  he  made  a  will,  in  which  he  appointed  Hon. 
Henry  D.  Gilpin  trustee,  and  in  which  he  made  proper 
and  handsome  provision  for  his  wife,  retaining  it,  how- 
ever, in  his  own  possession.  After  the  birth  of  his  daugh- 
ter Elizabeth,  he  made  two  codicils  to  that  will,  and  when 
his  daughter  Harriet  was  horn,  it  became  proper  for  him 
to  make  another  chancre  and  to  have  another  will  drawn  in 


DAVIS  et  al.  v.  ROGERS.  67 

June,  1850.  So  things  remained  until  July,  1853,  when 
Colonel  Davis  was  known  to  have  called  at  Mr.  Rogers' 
office,  and  nothing  further  was  developed  in  this  respect 
until  after  his  death,  when  this  paper  writing  is  pro- 
duced. 

He  then  proceeded  to  state  the  grounds  on  which  they 
resisted  and  denied  the  validity  of  this  instrument  in  ques- 
tion, as  the  last  will  and  testament  of  Colonel  Davis. 
First,  that  the  statute  of  the  State  of  Delaware  contains  no 
provision  for  the  execution  of  a  will  by  a  blind  man ;  it 
only  relates  to  persons  in  the  full  possession  of  their  facul- 
ties. Secondly,  that  when  a  will  has  been  executed  in 
conformity  with  the  provisions  of  the  statute,  the  law  in 
general  presumes  knowledge  of  its  contents  and  sufficient 
capacity  to  make  it,  on  the  part  of  the  testator ;  but  the 
mere  execution  of  a  will  by  a  blind  man  and  its  formal 
attestation  by  the  subscribing  witnesses,  raises  no  pre- 
sumption in  law  that  he  knew  the  contents  of  it,  and  if 
there  is  evidence  that  the  testator  was  blind,  or  from  any 
other  cause  was  unable  to  read  the  will,  it  is  then  incum- 
bent on  the  party  propounding  it,  to  prove  that  he  knew 
the  contents  of  it.  Thirdly,  we  shall  show  by  the  evi- 
dence which  we  are  about  to  offer,  that  in  point  of  fact, 
Colonel  Davis  did  not  know  the  contents  of  this  will,  and 
that  he  was  under  a  great  misapprehension  as  to  the  pro- 
visions of  it,  both  at  the  time  and  after  he  had  executed 
it.  lie  told  Mr.  Read,  one  of  the  witnesses  to  it,  after  it 
was  executed  and  before  he  left  the  room,  that  it  contained 
a  certain  bequest,  which  we  nowhere  find  in  it.  lie  also 
told  Mr.  Sellars  the  same  thing  some  time  after  he  had 
made  it,  and  he  had  always  declared  to  his  family,  before 
he  had  made  his  will,  that  he  intended  to  make  such  a  pro- 
vision in  it.  Besides,  we  shall  lie  able  to  prove  that  he 
always  designed  Delamore  Place  for  his  son  Delaware,  and 
that  he  never  was  known  to  change  that  purpose,  and  re- 
fused not  long  before  his  death  to  lease  it,  from  an  appre- 
hension which  he  entertained  that  it  might  keep  him  out 
of  the  possession  of  it.     lie  never  intended  to  cut  off  his 


68  SUPERIOR  COURT. 

widow,  as  this  paper  cuts  her  off.  His  previous  wills  and 
instructions  and  his  constant  disposition  to  increase  his 
real  and  diminish  his  personal  estate,  all  disprove  it.  I 
would  also  remark  that  this  will  contains  a  falsehood,  of 
which  Colonel  Davis  was  incapable,  in  regard  to  his  son 
Horatio  and  the  provision  which  it  falsely  alleges  he  had 
previously  made  for  him.  He  never  in  his  life  pretended 
that  he  had  provided  for  him ;  he  had  fallen  out  with  him 
and  threatened  to  disinherit  him,  but  he  never  pretended 
that  he  had  provided  for  him.  Superadded  to  all  this,  the 
will  is  subject  to  suspicion  on  its  very  face.  The  un- 
bounded confidence  reposed  in  the  executor  and  trustee, 
is  a  suspicious  feature  in  it,  and  in  connection  with  this 
the  liberal  bounty  provided  for  him  as  such  in  the  will,  is 
likewise  a  suspicious  circumstance.  The  insertion  of  the 
word  liberal  after  the  words  fair  and  in  the  will,  should  be 
accounted  for.  Was  the  text  prepared  for  such  an  inter- 
lineation, and  if  so,  what  was  the  meaning,  or  design  of 
it  ?  Was  the  compensation  which  the  executor  and  trustee 
is  to  receive,  to  be  more  or  less  than  fair  ?  And  finally, 
the  writer  and  draughtsman  of  the  will  taking  such  a  large 
and  beneficial  interest  under  it,  with  such  an  unlimited 
control  and  discretion  over  the  estate  of  a  blind  testator, 
enhances  the  obligation  of  the  propounder  of  the  will,  the 
executor  and  trustee  in  this  case  who  drew  it,  to  prove  to 
the  satisfaction  of  the  jury,  that  Colonel  Davis  was  fully 
apprised  of,  and  correctly  understood  every  provision  con- 
tained in  this  paper  writing  at  the  time  he  executed  it  as 
his  last  will  and  testament. 

Dr.  Lewis  P.  Bush :  Was  the  family  physician  of  Colonel 
Davis  for  eight  or  ten  years  past,  and  had  heard  him 
speak  of  having  had  an  operation  performed  on  one  of 
his  eyes  for  cataract.  The  effect  of  cataract  is  to  exclude 
the  light  from  the  retina,  as  it  produces  opacity  in  the 
crystalline  lens  which  covers  the  retina.  That  lens  con- 
centrates the  rays  of  light  as  they  pass  through  and  con- 
verges them  upon  the  retina.     In  one  operation  for  cata- 


DAVIS  et  al.  v.  EOGERS.  69 

ract  this  lens  is  removed  altogether;  in  another,  it  i§  de- 
pressed only.  After  this  operation  the  light  is  admitted 
to  the  retina,  but  the  eye  cannot  see  without  the  aid  of  a 
glass  lens,  and  then  he  sees  only  in  a  right  line,  and  would 
read  as  though  looking  at  the  words  through  a  spy  glass. 
The  head  and  not  the  eye  would  have  to  move  until  each 
succeeding  word  was  brought  within  the  line  of  his  vision; 
and  of  course,  such  a  person  would  read  very  slowly.  lie 
had  never  seen  Colonel  Davis  read  during  the  last  three 
years  of  his  life.  He  had  frequently  seen  him  with  spec- 
tacles on  and  with  a  newspaper  in  his  hands,  but  never 
saw  him  during  that  time  actually  reading.  For  the  last 
two  years  or  more  of  his  life,  his  hearing  was  obtuse,  and 
he  could  not  hear  an  ordinary  tone  of  conversation ;  he 
could  not  understand  a  continuous  reading  in  an  ordinary 
tone  of  voice.  Old  persons  were  often  sensitive  on  the 
score  of  age,  and  not  willing  to  admit  its  infirmities,  and 
Colonel  Davis  was  peculiarly  so;  he  never  knew  him  to 
admit  any.  Colonel  Davis's  spectacles  were  here  exhib- 
ited to  the  witness,  and  he  identified  them  as  cataract 
glasses. 

William  Huffington,  Esquire:  Became  acquainted  with 
Colonel  Davis  in  1838,  and  had  been  intimately  so  since 
1845.  In  1846  he  employed  him  as  his  legal  adviser.  At 
first  he  generally  came  to  his  office,  but  afterwards  he  gen- 
erally sent  for  him,  and  he  frequently  visited  him  both  so 
cially  and  professionally  at  his  own  house.  During  that 
year  and  for  three  or  four  years  afterwards,  he  had  fre- 
quently seen  him  read  paragraphs  in  the  newspapers  and 
letters  from  Mrs.  Myra  Gaines  and  others;  but  in  1848  he 
began  to  leave  off  reading,  and  since  184D  he  had  not  seen 
hint  read  a  line,  or  read  any  instrument  prepared  by  him. 
Since  that  time  in  signing  his  name  great  care  had  to  be 
taken  in  placing  the  paper  before  him.  lie  told  him  he 
had  been  totally  blind  from  cataract,  and  that  he  had  an 
operation  performed  on  one  of  his  eves,  which  partially  re- 
lieved it;    but  the  surgeon   refused   to  operate   upon   the 


70  SUPERIOR  COURT. 

other,  saying  that  a  man  of  his  age  might  well  be  satisfied 
with  one  eye.  In  1850  he  sent  for  the  witness  to  draw  a 
will  for  him,  which  he  said  was  necessary  in  consequence 
of  the  birth  of  a  daughter.  He  told  him  he  had  a  will 
drawn  by  Mr.  Henry  D.  Gilpin  of  Philadelphia,  with  sev- 
eral codicils  since  added  to  it,  which  he  produced  and 
showed  him,  but  he  said  it  would  be  better  to  have  another 
will  written,  which  was  done.  He  took  his  instructions 
for  it  in  writing,  prepared  the  will,  and  he  executed  it.  In 
1851  his  hearing  he  perceived  began  to  fail ;  it  was  worse, 
however,  at  some  times  than  at  others,  and  increased  as 
he  advanced  in  age. 

Mr.  Bates  here  propounded  the  following  question  to 
the  witness:  if  he  had  ever  heard  Colonel  Davis  express 
any  testamentary  intentions  before,  or  after  the  making  of 
his  will,  and  particularly  with  regard  to  a  certain  property 
which  he  owned,  and  which  he  intended  to  devise  to  his 
son  Delaware. 

Mr.  Dallas  objected  to  the  question.  The  learned 
counsel  in  opening  the  case  had  made  no  suggestion  of 
fraud  in  reference  to  the  execution  of  this  will. 

Mr.  Davis:  That  is  what  we  propose  to  prove,  though 
expressed  in  the  mildest  form. 

Mr.  Browne:  If  that  position  was  not  expressly  as- 
sumed and  announced  in  the  opening,  it  was  sufficiently 
indicated,  and  was  only  suppressed  from  a  sense  of  polite- 
ness. 


Mr.  Rogers:  No  such  delicacy  is  expected  or  desired  by 


me. 


Mr.  Dallas  :  I  am  happy  now  to  have  brought  the  other 
side  to  a  full  disclosure  of  their  design.  If  the  declara- 
tions   proposed  to  be  given  in  evidence  were  uttered  at 


DAVIS  et  al.  v.  ROGERS.  71 

the  time  of  executing  the  will,  so  as  to  constitute  a  portion 
of  the  res  gestce,  they  were  admissible,  but  if  they  were 
not  uttered  at  the  time,  the  rule  was  otherwise.  The  word 
fraud  has  a  legal  meaning,  and  nothing  like  it  had  hitherto 
been  alleged  on  the  other  side.  Such  declarations  are  not 
admissible  either  to  revoke  or  set  aside  a  will,  except  on 
the  ground  of  fraud,  circumvention,  deception,  &c.  Tes- 
tamentary declarations  of  an  intention  to  make  a  will  in  a 
particular  way,  and  even  declarations  of  duress,  are  not 
admissible  for  this  purpose.  Smith  v.  Fenner,  1  Gallison's 
Rep.  262 ;  Jackson  v.  Kniffer,  2  Johns  Rep.  31 ;  Stevens  v. 
Vancleve,  4  Wash.  Rep.  262.  In  no  case  have  such  decla- 
rations been  admitted,  except  to  repel  or  disprove  a  charge 
of  fraud,  for  which  purpose  they  are  admissible  and  for 
no  other.  Comstoch  v.  Hedlymne,  8  Conn.  Rep.  254;  Provis 
v.  Rowe,  5  Bingh.  435  (13  Cong.  C.  L.  R.  490);  Mod.  Prob. 
of  Wills,  444.  This  principle  for  which  I  have  contended, 
is  the  principle  of  the  common  law  courts  here  and  in 
England ;  but  the  ecclesiastical  courts  in  that  country  have, 
I  admit,  established  a  principle  in  their  practice  at  war 
with  this. 

Mr.  Bates :  If  this  question  is  to  be  considered  an  open 
one  in  this  State,  it  must  be  discussed  at  large,  for  it  is  a 
vital  question  in  this  case.  But  this  court  has  decided  it. 
In  the  case  of  Rash's  will,  Rash  v.  Purnell,  2  llarr.  Rep. 
457,  the  court  ruled  such  evidence  to  be  admissible. 

By  the  Court :  But  the  question  has  never  been  decided 
by  our  highest  court — the  Court  of  Errors  and  Appeals — 
and  we  will  therefore  hear  the  question  argued. 

Mr.  Bates  proceeded :  The  evidence  is  not  offered  for 
any  purpose  connected  with  the  construction  of  a  will,  nor 
of  attacking  any  bequest  made  in  a  will  already  proved,  nor 
of  setting  up  a  parol  revocation  of  a  will,  nor  of  proving  a 
fact  outside,  but  for  the  purpose  of  ascertaining  whether 
this  paper  contains  the  testamentary  intentions  of  the  tes- 


72  SUPERIOR  COURT. 

tator.  There  is  also  a  distinction  between  declarations 
which  go  to  prove  facts  impeaching  the  will  and  duress 
and  declarations  showing  testamentary  intention.  This  dis- 
tinction rules  out  the  cases  cited.  The  admissibility  of 
declarations  as  showing  testamentary  intention  is  necessary 
as  a  matter  of  policy  to  protect  against  fraud.  Take  a 
blind  and  a  deaf  man,  and  cut  off  all  means  of  proving  his 
intentions  by  proving  his  declarations,  and  he  is  liable  to 
any  kind  of  imposition,  because  it  will  be  contended  it  is 
not  necessary  to  prove  he  read  or  heard  the  will ;  and  per- 
haps that  it  was  not  the  duty  of  the  testamentary  witness 
to  ascertain  whether  he  knew  the  contents  of  the  will.  The 
testimony  is  admissible  by  the  strict  rules  of  evidence.  The 
tact  that  a  paper  was  executed  does  not  prevent  us  from 
going  outside  of  it  to  show  testamentary  intentions.  The 
very  object  of  this  proceeding  is  to  ascertain  if  the  will  is 
the  will,  and  to  say  that  no  evidence  of  will  shall  be  given 
except  through  the  will,  is  to  assume  that  to  be  the  will 
whose  existence  is  the  object  of  the  suit.  In  case  of  blind- 
ness the  inquiry  into  intention  is  more  fully  opened,  and 
it  is  necessary  to  prove  the  intention  aliunde.  1  Eccl.  Rep. 
290.  The  animus  testandi  is  always  open.  1  Bradford 
Rep.  364-5.  Proof  of  intention  is  necessary  to  the  ex- 
istence of  the  will  to  prove  the  factum  ;  and  proof  of  the 
factum,  may  always  be  by  parol.  Evidence  of  the  testator's 
mind  must  always  come  from  himself.  Ilia  declarations 
are  the  best  and  most  reliable  evidence. 

This  is  not  hearsay  evidence,  which  is  the  testimony  of 
a  witness  under  oath  to  the  sayings  of  another  not  under 
oath'  as  to  a  fact,  but  it  is  the  declaration  of  a  party  as 
evidence  of  the  mind  with  which  he  did  an  act.  The 
quo  animo  is  always  to  be  proved  by  his  declarations,  and 
to  rule  them  out  would  be  to  rule  out  writings,  even  in- 
structions, which  are  but  evidence  of  intention. 

I  have  found  no  case  in  which  the  evidence  of  intention 
lias  been  rejected,  though  it  be  by  parol,  but  many  to  the 
contrary.  7  Vesey  Rep.  509 ;  40  Eng.  C.  Laic  Rep.  92 ; 
1  Eccles.  Rep.  144;  Johnson  v.  Johnson,  Ibid.  390;   2  Ver- 


DAVIS  et  al.  v.  EOGERS.  73 

non  R.  76 ;  Nelson  v.  Oldjield,  1  Moody  and  Robinson,  525 ; 
Doe  v.  Hardy,  1  Hawks'  Rep.  248 ;  Reel  v.  Reel,  3  Deve- 
reaux  R.  442;  3  Phill.  Evid.,  last  ed.  by  Cowen  and  Hill, 
267-9 ;  1  Ibid.  189 ;  3  Leigh  Rep.  52. 

Fully  reviewing  all  the  cases,  and  opposing  JacRson  v. 
Niffen,  which  was  but  a  minority  decision. 

Mr.  Davis :  The  case  stands  thus  at  present.  The  pro- 
pounders  have  proved  the  signing  of  a  paper  by  Colonel 
Davis,  according  to  the  statutory  formalities,  and  the  de- 
claration that  it  was  his  will.  They  then  rest,  saying  that 
the  will  is  proved.  We  deny  that  it  is  the  will ;  first,  be- 
cause the  testator,  being  practically  blind,  it  is  not  proved 
to  be  his  will  unless  the  propounder  prove  that  it  was  tead 
to  him  and  explained.  We  go  a  step  further,  and  offer  to 
prove  he  did  not  know  the  contents  of  the  will,  by  his  de- 
clarations, made  before  and  after,  that  it  contained  disposi- 
tions which  it  does  not  contain.  This  is  objected  to  as 
incompetent  to  be  proved  by  parol.     Why  ? 

The  statute  of  wills  says  a  will  may  be  of  real  and  per- 
sonal property.  What  is  a  will  ?  Originally  any  expression 
of  the  mind,  verbal  or  written,  was  a  will ;  it  is  the  mind 
that  makes  the  will,  though  that  mind  must  be  evidenced 
by  writing  and  signature.  But  suppose  the  writing  and 
signature  deceptive,  how  are  we  to  get  at  the  mind  ?  The 
declarations  of  the  testator  at  any  time  are  evidence  of  it, 
and  the  only  mode  of  evidence.  Fraud  vitiates  the  will ; 
but  how  shall  fraud  be  proved  but  by  parol  ?  Insanity, 
duress,  ignorance  of  the  contents  can  be  proved,  but  not 
otherwise  than  by  parol.  And  why  should  not  the  decla- 
rations of  the  testator  respecting  his  own  disposition  of  hiH 
own  property  be  evidence  of  such  dispositions  ?  Who  can 
complain  of  it '( 

Then  as  to  authority.  None  of  the  cases  cited  by  the 
other  side  are  precisely  in  point.  None  say  that  in  a  case 
where  the  validity  of  the  will  is  solely  in  question,  parol 
evidence  of  declarations  of  the  testator  respecting  his  testa- 
mentary dispositions,  is  not  evidence. 

6 


74  SUPERIOR  COURT. 

Mr.  Dallas:  Rash  v.  Purnell  was  not  argued,  and  is 
therefore  not  authoritative.  There  is  a  will  here  proved ; 
it  was  on  that  ruling  of  the  court  we  rested.  The  contestants 
have  undertaken  to  undermine  a  will  proved  ;  but  they  say 
they  have  proved  the  testator  a  blind  man.  They  have 
proved  precisely  the  reverse ;  for  he  was  proved  to  be  a 
man  who  could  see  by  the  aid  of  glasses,  which  he  used  on 
the  occasion. 

The  law  on  this  question  is  contained  in  the  Code  of 
Delaware  prescribing  how  a  will  shall  be  made.  "When 
made  with  all  these  solemnities,  shall  it  be  destroyed  by 
the  breatli  of  the  testator  in  any  idle  conversation?  The 
law  says  it  shall  not  be  altered  but  with  certain  solemnities. 
Yet  here  it  is  attempted  not  only  to  alter  but  to  destroy  it 
by  conversations. 

Is  a  will  of  less  force  than  a  deed  ?  Yet  who  ever  heard 
of  a  deed  duly  executed  being  nullified  by  the  declaration 
of  the  grantor  that  he  had  no  intention  to  make  it? 

These  declarations  are  made  often  with  the  intention  of 
deceiving;  shall  they,  then,  be  given  in  evidence  to  defeat 
a  will  made  according  to  the  testator's  wishes? 

By  the  Court,  Harrington,  Ch.  J. :  We  had  supposed  that 
the  question  now  presented  had  been  settled  by  repeated 
decisions  in  this  Court,  and  concurred  in  and  acted  upon 
for  a  number  of  years  past  in  cases  similar  to  this.  It  was 
first  practically  decided  in  the  case  of  Duffield  v.  Morris's 
Executor,  2  Harr.  Rep.  375,  and  followed  in  the  case  of 
Rash  v.  Purnell,  Jdemr44H,  in  which  it  was  expressly  ruled 
that  parol  declarations  of  the  testator,  as  to  his  testamen- 
tary intentions,  were  admissible  in  evidence  for  the  purpose 
of  invalidating  an  instrument  propounded  as  his  last  will 
and  testament.  But  we  were  quite  willing  to  hear  it  ar- 
gued, as  we  were  aware  there  are  contrary  decisions, 
and  were  told  that  the  question  is  one  of  great  importance 
in  this  case.  It  lias  been  fully  discussed,  and  our  opinion 
remains  unchanged  that  the  evidence  is  admissible.  We 
cannot  regard  it  as  excluded  by  the  statute  of  wills,  which 


DAVIS  et  al.  v.  KOGERS.  75 

requires  certain  formalities  to  be  observed  in  order  to  con- 
stitute a  valid  will,  which  are  absolutely  essential  to  estab- 
lish its  validity,  and  which  cannot  be  supplied  by  any  parol 
proof  whatever.  But  it  does  not  follow  that  these  essen- 
tials may  not  be  controverted  and  disproved  and  the  vali- 
dity of  the  will  be  impeached  by  parol  evidence ;  because, 
to  deny  this,  would  be  to  give  to  these  formalities  and  the 
mere  execution  of  the  will  a  conclusiveness  which  does  not 
properly  pertain  to  them.  Knowledge,  intention,  purpose 
are  necessary  to  a  will ;  and  if  the  want  or  absence  of  these 
cannot  be  proved  by  parol,  when  the  will  is  denied  upon 
this  ground,  all  proof  to  the  contrary  of  the  will  itself, 
would  in  effect  be  excluded  on  these  essential  points ; 
and  it  is  difficult,  if  not  impossible,  to  conceive  how  this 
question  of  testamentary  intention,  which  is  the  very  point 
in  controversy,  is  to  be  ascertained  and  determined,  if  the 
testamentary  declarations  of  the  testator  outside  of  the 
will,  are  to  be  rejected  as  altogether  inadmissible  and  en- 
tirely excluded  from  the  consideration  of  the  question. 
With  regard  to  the  sufficiency  or  insufficiency,  the  weak- 
ness or  the  strength  of  such  evidence,  to  invalidate  a  will 
executed  with  all  the  solemnities  and  formalities  required 
by  the  statute,  that  does  not  properly  apply  to  the  question 
of  its  admissibility,  but  is  a  matter  for  the  consideration 
and  decision  of  the  jury  under  the  charge  and  direction  of 
the  Court.  It  is  the  opinion  of  the  Court,  therefore,  that 
the  inquiry  proppunded  to  the  witness  may  be  answered. 

Mr.  llujfingion  proceeded  :  When  he  was  about  to  write 
Colonel  Davis's  will  in  1850,  we  were  making  a  valuation 
of  his  real  and  personal  estate,  which  we  made  about 
£130,000.  I  told  him  I  thought  he  would  be  giving  his 
son  Delaware  more  than  his  share.  lie  said  he  wanted 
him  to  have  the  home  place,  to  be  a  gentleman  and  the 
head  of  the  family,  to  marry  young  and  live  there,  and  he 
supposed  it  would  be  a  home  for  his  young  sisters.  I 
think  the  will  now  shown  me  is  in  the  handwriting  of  Wil- 
liam II.  Rogers,  Esq.,  although  it  is  not  so  good  as  his 


76  SUPERIOR  COURT. 

handwriting  in  general.  He  then  identified  and  proved 
the  will  produced  and  shown  him  as  the  will  drawn  by  the 
witness  in  1850.  The  will  drawn  by  Mr.  Gilpin  with  the 
codicil  drawn  by  Mr.  Rogers,  was  put  in  my  hands  from 
which  to  draw  the  will  of  1850,  and  my  impression  is,  and 
to  the  best  of  my  belief  I  so  state  the  fact  to  be,  that  when 
I  had  drawn  the  will  of  1850,  he  threw  that  will  and  codi- 
cil in  the  fire  and  burnt  it.  The  trusts  in  the  two  wills 
were  the  same  and  the  devise  to  his  son  Delaware  were 
the  same  in  both  wills.  Up  to  1851, 1  saw  him  as  often  as 
once  a  month.  After  the  early  part  of  that  year  I  had  not 
so  much  business  with  him,  and  did  not  see  him  so  often. 
The  last  time  I  saw  him  was  at  the  execution  of  the  deed 
of  Mr.  Bird  in  February,  1854.  I  had  previously  drawn 
the  contract  between  him  and  Mr.  Bird,  and  it  was  signed 
by  Colonel  Davis,  at  his  house.  He  had  two  pairs  of  spec- 
tacles— one  pair  to  read  with,  and  another  pair  to  see  dis- 
tances. I  have  seen  him  reading  letters,  newspapers,  and 
instruments.  I  have  not  seen  him  read  letters  since  1848, 
nor  newspapers  since  1849,  but  had  not  seen  him  attempt 
to  read  anything  since  1849.  He  did  not  attempt  to  read 
the  will  he  wrote  for  him  in  1850,  and  from  his  having  to 
direct  his  hand,  he  did  not  believe  he  saw  a  letter  he  made, 
when  he  signed  it. 

Alcjranda'  S.  ItanL  recalled:  After  the  other  gentlemen 
who  attested  his  last  will. with  me  had  left,  as  1  had  at- 
tested a  former  will  for  him,  1  asked  him  why  he  had 
made  another?  He  said  as  his  daughter  Harriet  was  pass- 
ing at  the  moment,  "J  have  made  a  much  larger  provision 
for  that  child  than  in  my  other  will,"  and  he  said  he  had  left 
her  some  lots  on  Fourth  Street,  in  the  city  of  Wilmington. 
I  told  him  [  thought  it  was  judicious,  as  they  would  be 
valuable  by  the  time  she  came  of  age.  This  was  about 
ten  minutes  after  the  will  was  executed.  His  manner  was 
grave,  and  I  believed  that  he  spoke  the  truth. 

Michael  Quinn :  I  lived  a  year  at  Colonel  Davis's  before 


DAVIS  rr  al.  v.  ROGERS.  77 

his  death.  I  worked  on  the  farm,  and  went  to  market,  and 
to  the  post-office  for  his  letters  and  papers.  When  I 
would  take  the  letters  to  him,  he  would  hold  them  up  and 
look  at  them,  and  then  lay  them  down  by  the  side  of  him, 
and  call  for  his  wife  to  come  and  read  them  to  him.  I 
never  saw  him  read  one  himself.  When  I  would  bring 
change  home  from  market,  he  would  get  his  son  Sussex  to 
count  it  for  him,  and  I  never  saw  him  count  it  himself.  I 
lived  with  him  in  1853  and  1854.  When  I  would  take  the 
money  to  him,  he  would  ask  who  I  was.  I  would  say 
Michael,  and  then  he  would  speak.  I  have  been  at  Colonel 
Davis's  since  he  died.  I  worked  there  five  days  for  Mrs. 
Davis  in  March. 

James  T.  Boies:  I  knew  Colonel  Davis  for  six  or  seven 
years  before  his  death,  and  for  three  years  I  lived  very 
near  him.  I  drew  a  good  many  papers  for  him ;  the  last 
paper  I  drew  for  him  was  about  two  weeks  before  his 
death,  for  his  brother-in-law,  Mr.  Jones.  I  never  knew 
him  to  read  any  paper.  I  always  read  them  to  him,  and 
he  signed  his  name  with  difficulty  ;  his  hand  had  to  be 
placed  by  another  at  the  place  on  the  paper  for  the  signa- 
ture, lie  said  at  that  time  that  he  either  had,  or  in- 
tended to  leave  his  home  place  to  his  son  Delaware.  I  was 
there  on  one  occasion  when  the  children  had  a  celebration 
or  picnic  on  his  estate,  in  May  last  year,  and  heard  him 
make  a  speech  to  them  at  their  parting.  He  told  them 
he  was  very  glad  to  meet  them  there — that  they  were 
welcome  to  the  place,  and  though  he  was  an  old  man 
and  could  not  live  long,  yet  when  he  was  gone,  he  would 
leave  a  son  who  would  welcome  them  there.  He  was  a 
shrewd  man  of  business.  I  do  not  know  much  about  his 
spectacles;  he  had  two  pairs  of  them.  The  deed  I  have 
spoken  of,  to  Mr.  Jones,  was  prepared  about  ten  days  be- 
fore his  death.  When  1  read  it  to  him  it  contained  an  er- 
ror which  he  instantly  detected;  and  before  I  had  redrawn 
it,  he  was  taken  sick,  too  sick  to  sign  it,  and  Mr.  Jones  . 
lost  his  land.  The  error  was  this  :  Colonel  Davis  was 
about   to  give   Mr.  Jones  a  piece   of  ground   on  French 


78  SUPERIOR  COURT. 

Street,  in  Wilmington,  and  he  brought  me  the  deed  for 
the  premises  to  Colonel  Davis,  from  which  to  prepare  the 
deed  to  Mr.  Jones.  That  deed  was  for  two  pieces  of  land, 
and  in  drawing  the  deed  to  Mr.  Jones,  I  drew  it  for  both 
pieces,  when  the  Colonel  intended  to  give  him  but  one  of 
them. 

Mr.  Huffinfjton,  again  :  Froduces  the  agreement  in  writ- 
ing between  Colonel  Davis  and  Mr.  Bird,  and  hands  it  to 
Mr.  Dallas.  My  impression  is  that  in  the  will  written  by 
Mr.  Gilpin  there  was  a  reversion  of  some  kind  left  to  his 
son  Alonzo.  Delamore  Place  was  devised  in  it  I  know  to 
his  son  Delaware. 

James  D.  Bird:  I  knew  Colonel  Davis  for  twenty  years. 
I  lived  for  several  years  very  near  him;  and,  since  1838,  I 
have  visited  him  every  week,  and  sometimes  oftener.  Seve- 
ral years  ago  I  heard  him  speak  of  his  sight  and  the  cata- 
ract. From  1834  to  1849,  or  1850,  I  frequently  heard  and 
saw  him  read  newspapers,  but  not  writing.  After  that  I 
never  saw  him  read  newspapers,  and  I  could  plainly  see 
that  he  could  not  read.  lie  seemed  to  try  to  read  letters 
when  he  received  them,  and  would  hold  them  up  and  look 
at  them,  but  he  would  often  get  them  upside  down.  The 
article  of  agreement  between  him  and  myself  was  written 
by  Mr.  Huffington;  he  did  not  read  it;  Mr.  Huffington 
read  it  over  to  him  several  times,  and  would  explain  it  to 
him  so  as  to  make  him  understand  it.  His  hearing  was 
bad,  and  he  could  not  hear  when  I  spoke  in  an  ordinary 
tone  of  voice.  When  he  did  not  hear  me  he  would  ask 
me  to  repeat  it,  and  I  would  speak  a  little  louder,  when  he 
could  hear  me. 

John  31.  Join*:  I  knew  Colonel  Davis  since  1834;  he 
married  my  sister.  I  arrived  at  his  house  in  February, 
1854,  after  an  absence  of  two  years.  I  was  at  his  house 
nearly  every  day  after  that  time.  He  died  September  6, 
1854.  in  his  eighty-eighth  year.  In  1841>  I  remarked  that 
his  vision  was  materially  impaired.  Since  that  time  I  have 
frequently  entered  the  room  where  he  was,  when  he  did 


DAVIS  et  al.  v.  ROGERS.  79 

not  know  me  with  his  glasses  on.  Since  then  I  have  never 
seen  him  read  any  kind  of  writing.  He  could  only  sign 
checks  by  my  putting  my  finger  on  the  line  and  holding 
it  there,  so  that  he  could  find  the  line.  Since  1850  I  dis- 
covered that  his  hearing  had  failed  very  materially.  In 
1847  I  heard  him  say  he  intended  Delamore  Place  for  his 
son  Delaware,  and  that  he  should  represent  him  there.  In 
1852  he  said  to  me  he  had  been  offered  a  price  for  his  lot 
on  Fourth  Street,  but  he  would  not  sell  it,  because  he  in- 
tended it  for  his  daughter  Harriet.  In  1854  I  heard  him 
say  that  he  had  already  disposed  of  that  lot  to  his  daughter 
Harriet;  that  she  was  then  six  years  old,  and,  if  property 
continued  to  increase  in  value  in  Wilmington  for  the  next 
fifteen  years  as  it  had  in  the  last,  it  would  be  worth,  by  the 
time  she  was  grown,  forty  thousand  dollars.  The  Cleland 
tract  was  over  the  Christiana  Creek,  and  he  was  afraid  he 
would  not  be  able  to  get  land  enough  around  Delamore 
riace  to  make  a  farm  for  Sussex.  His  object  was  to  get 
land  enough  to  make  three  farms  adjoining  for  his  three 
sons.  He  said  he  thought  seventy  or  eighty  acres  was 
enough  for  a  farm.  He  said  he  did  not  want  his  sons  to 
be  professional  men,  but  farmers;  but,  if  they  chose  to  be 
professional  men  afterwards,  they  might  be  so.  After  he 
purchased  the  tract  of  Mr.  Bird  I  supposed  he  had  land 
enough  to  make  the  three  farms  of  the  size  he  spoke  of. 
I  was  present  at  the  reading  of  the  will  after  his  death.  It 
was  produced  and  read  by  Mr.  Rogers.  I  don't  know  who 
sent  for  Mr.  Rogers  after  the  Colonel's  death — that  is  a 
mystery.  I  do  not  know  indeed  whether  he  was  sent  for 
or  not.  I  made  his  house  my  home  by  his  invitation  when 
I  was  oft*  service,  and  I  was  there  during  his  last  illness 
and  at  the  time  of  his  death,  and  continued  there  for  seve- 
ral days  after  it.  He  never  walked  without  putting  on 
what  he  called  his  walking  spectacles. 

Edward  P.  Jones':  Iu  May,  1854,  Mr.  Sellars  was  out  at 
Colonel  Davis's,  and  the  conversation  turned  on  property 
in  Wilmington,  when  Colonel  Davis  remarked  that  he  had 


80  SUPERIOR  COURT. 

given  his  lot  on  Fourth  Street  to  his  daughter  Harriet. 
Mr.  Sellars  replied  that  he  thought  it  was  very  well,  for  it 
would  in  time  be  a  handsome  fortune  for  her.  I  was  there 
frequently  in  1854.  He  was  able  to  attend  to  business  if 
he  had  some  one  to  transact  it  for  him.  I  never  trans- 
acted any  business  for  him  without  his  direction.  I  was 
in  the  house  when  Mr.  Rogers  came  and  took  the  papers. 
Mr.  Rogers  asked  me  where  he  could  find  the  certificate 
of  the  Government  loan ;  I  told  him  where  he  could  get 
it.  It  was  in  a  pocket-book,  locked  up  in  the  escritoire. 
A  few  days  before  Colonel  Davis's  death  he  asked  me  to 
get  some  of  his  papers  for  him ;  I  did  so ;  and  he  told  me 
to  look  carefully  over,  and  when  I  came  to  this  certificate, 
he  told  me  to  put  it  in  the  pocket-book  and  lock  it  in  the 
secretary  and  take  care  of  it.  I  was  not  in  the  room  when 
the  secretary  was  opened  by  Mr.  Rogers.  I  do  not  know 
where  he  got  the  key. 

After  introducing  further  testimony  corroborative  of  the 
foregoing,  and  proving  that  the  will  and  the  instructions 
from  which  it  was  drawn  were  in  the  handwriting  of  Mr. 
Rogers,  the  contestants  next  offered  and  read  in  evidence 
the  will  drawn  by  Mr.  Huffington  in  1850.  By  this  will 
the  testator  devised  to  his  wife  for  life,  in  lieu  of  dower, 
his  "  mansion  farm,"  comprising  about  forty  acres,  a  three- 
story  briek  dwelling-house  on  King  Street  in  the  city  of 
Wilmington,  five  thousand  dollars  in  money,  and  all  his 
household  .and  kitchen  furniture,  with  the  exception  of  his 
statuary,  paintings,  and  plate,  and  some  other  specially 
excepted  articles.  To  his  son  Delaware  Davis  by  the  same 
will  he  devised  "  Delamore  Place"  in  fee  simple,  contain- 
ing about  fifty-one  acres,  and  all  his  stock  in  a  loan  of  the 
United  States,  amounting  to  sixteen  thousand  dollar's,  and 
a  bond  and  mortgage  against  Robert  M.  Lewis,  <»f  Phila- 
delphia, for  eight  thousand  dollars,  and  appointed  his  sou, 
Alonzo  B.  Davis,  to  be  his  guarduin,  with  certain  direc- 
tions as  to  his  maintenance  and  education  until  he  should 
arrive  at  the  age  of  twenty-one  years.     The  reversion  in 


DAVIS  etal.  v.  ROGERS.  81 

the  property  devised  to  his  wife,  and  the  residue  of  all  his 
real  and  personal  estate,  with  the  exception  of  some  spe- 
cially enumerated  articles  and  two  burial  lots,  one  in  Ron- 
aldson's  Cemetery,  Philadelphia,  and  the  other  in  the 
Wilmington  Cemetery,  he  devised  in  trust  to  his  friend, 
Henry  D.  Gilpin,  of  Philadelphia,  to  be  equally  divided 
among  his  other  children  by  his  last  wife,  and  the  survi- 
vors of  them,  and  to  the  issue  of  such  as  might  die  in  the 
meantime,  on  their  respectively  arriving  at  the  age  of 
twenty-one  years,  with  specific  instructions  to  the  trustee 
as  to  funding  and  vesting  the  accumulations  of  interest  in 
the  meanwhile,  and  the  maintenance  and  education  of  such 
children  until  they  should  respectively  attain  the  age  of 
maturity.  The  will  also  contained  a  provision  that,  in  case 
Mr.  Gilpin  should  die,  or  decline  to  accept  the  trust  and 
executorship  of  the  will,  the  Orphans'  Court  of  the  City  of 
Philadelphia  should  appoint  a  trustee  and  executor  in  his 
place,  who  should  be  vested  with  the  same  powers,  and  be 
subject  to  the  same  trusts  and  limitations  as  Mr.  Gilpin 
was,  or  would  have  been  under  the  will. 

The  contestants  then  rested,  and  the  counsel  for  the 
executor  proceeded  to  call  their  witnesses  in  reply. 

Samuel  Floyd:  I  am  the  cashier  of  the  Bank  of  Dela- 
ware. I  remember  of  Mr.  Rogers  leaving  a  sealed  enve- 
lope like  the  one  now  shown  me,  in  my  possession  in  the 
bank,  indorsed  as  the  will  of  Colonel  Davis.  It  was  there 
several  months,  and  Mr.  Rogers  called  for  it,  and  I  gave 
it  to  him  within  three  or  four  days  after  his  death.  Colonel 
Davis  had  no  Qpen  account  in  our  bank,  and  never  had  had 
any  but  a  single  deposit  in  the  Bank  of  Delaware,  about 
three  years  before.  The  will  and  envelope  were  here 
offered  in  evidence  to  the  jury  by  Mr.  Dallas,  lie  also 
offered  forty-three  checks  of  Colonel  Davis,  from  January 
20,  1854,  to  August  19,  1854,  for  an  aggregate  sum  of 
$6258.12.  There  was  one  check  among  them  of  the  13th 
of  March,  1854,  which  was  tilled  up  as  well  as  signed  by 
Colonel  Davis. 


82  SUPEEIOR  COURT. 

G.  W.  Gordon,  recalled :  I  recollect  of  seeing  a  paper  in 
an  envelope,  precisely  similar  to  this,  directed  to  Henry 
D.  Gilpin,  on  the  day  of  Colonel  Davis's  funeral.  In  the 
morning,  Mr.  Rogers  told  me  he  had  such  a  paper  directed 
to  Henry  D.  Gilpin.  On  the  way  out,  he  produced  this  will 
or  paper,  and  asked  me  if  I  thought  it  would  be  improper 
in  him  to  open  it.  He  said  he  had  a  delicacy  about  open- 
ing it,  as  it  was  addressed  to  Mr.  Gilpin.  But  Mr.  Gilpin 
was  then  in  Europe,  and  it  was  important  to  be  known 
whether  Colonel  Davis  had  made  any  will  since  the  one  he 
had  drawn  for  him,  as  he  had  been  out  of  town  for  some 
time,  and  he  did  not  know  but  he  might  have  executed  a 
codicil  reviving  this  will  during  his  absence.  I  opened 
the  paper  by  his  request,  and  found  it  contained  this  will. 
He  said  that  Mrs.  Davis  or  some  one  had  handed  it  to  him 
as  an  old  will  of  the  Colonel's.  When  the  will  now  in 
controversy  was  executed  by  him,  and  which  I  attested  as 
a  witness,  no  one  assisted  Colonel  Davis  in  signing  his 
name  to  it ;  he  signed  it  himself  without  assistance.  Mr. 
Rogers  held  one  end  of  the  will  down  to  keep  it  level  while 
he  signed  it,  as  it  had  been  folded  up.  I  cannot  say  that 
Mr.  Rogers  did  not  show  him  where  to  sign  his  name ;  but 
if  he  did,  I  have  no  recollection  of  it.  He  was  absent 
from  home  with  his  family  in  Savannah  for  some  time  be- 
fore Colonel  Davis's  death. 

Mr.  Bates  insisted,  in  his  argument  to  the  jury,  that  al- 
though in  ordinary  cases  knowledge  of  the  contents  of  a 
will,  or  any  other  written  instrument,  by  the  party  execut- 
ing it,  was  implied  from  the  mere  execution  of  it,  such 
was  not  the  presumption  in  the  case  of  a  will  executed  by 
a  person  unable  to  read  from  any  cause,  as  blindness,  ex- 
treme illness,  or  defect  of  education;  and  the  jury  must  be 
satisfied  by  proof,  in  such  a  case,  that  the  contents  of  the 
will  were  brought  home  to  his  knowledge;  and  the  rule 
on  this  subject  was  still  more  stringent  when  the  draughts- 
man of  the  will  enjoys  his  confidence,  has  great  influence 
over  him,  and  takes  himself  a  benefit  under  it.     1  Wrns. 


DAVIS  et  al.  v.  ROGERS.  83 

on  Ex'rs,  16,  293;  Barton  v.  Robert,  1  Eng.  Eccl.  Rep.  442, 
in  note  ;  Parminster  v.  Butler,  cited  in  that  case;  Finchman 
v.  Edwards,  7.  Eccl.  Rep.  369.  In  the  last  case  cited  the 
testatrix  was  almost  blind,  and  had  to  have  her  hand  placed 
on  the  paper  and  guided  while  she  signed  the  will,  and  it 
was  held  necessary  to  prove  by  positive  evidence  that  she 
actually  knew  the  contents  of  it.  The  civil  law  required, 
in  case  of  blindness,  proof  that  the  will  had  been  read 
over  to  the  testator;  but  At  common  law  it  is  sufficient,  if 
there  be  other  satisfactory  evidence  beyond  the  mere  fact 
of  his  having  executed  the  will,  that  he  knew  its  contents. 
And  such  proof  must  be  supplied  at  common  law.  Long- 
champ  v.  Fish,  2  New  Rep.  415;  Burger  v.  Hill,  1  Bradf. 
Rep.  363.  And  this  rule  was  the  same  both  in  the  eccle- 
siastical and  the  common  law  courts.  Boid  v.  Cook,  3 
Leigh's  Rep.  51 ;  Harrison  v.  Rowan,  3  Wash.  Rep.  584 ; 
Harding  v.  Hayes,  9  Barfs  Rep.  151.  The  other  and  addi- 
tional circumstance  which  existed  in  the  present  case,  in- 
dependent of  the  blindness  of  the  testator,  and  which 
would  have  the  same  effect,  and  impose  the  same  obliga- 
tion upon  the  propounder  of  the  will,  was  the  fact  that  the 
draughtsman  of  the  will  took  a  great  benefit  under  it,  was 
the  attorney  of  the  testator,  and  possessed  his  confidence. 
1  Wms.  on  Ex'rs,  293 ;  Parke  v.  Ollap,  1  Eccl.  Rep.  273 ;  In- 
gram v.  Wyatt,  3  lb.  167.  By  the  civil  law,  the  person  who 
wrote  a  will  could  not  take  any  benefit  under  it;  the  com- 
mon law  was  not  so  strict,  but  still  it  required,  in  .such  a 
case,  proof  that  the  party  executing  it  had  full  knowledge 
of  its  contents;  and  the  object  of  the  rule  was  to  prevent 
undue  influence,  fraud,  and  circumvention,  under  such 
circumstances.  He  did  not  mean  to  insinuate  that  the 
executor  and  trustee  in  this  case,  who  drew  the  will  and 
took  a  considerable  benefit  under  it,  had  undue  influence 
over  Colonel  Davis;  but  the  suspicion  which  he  must  meet 
and  remove  was  that  of  fraud  and  imposition ;  for  the  law 
required  this,  and  it  was  his  duty  to  do  it.  Barry  v.  Butler, 
6  Eccl.  Re/>.  417;  Purnell  v.  Corfield,  1  Robins's  Rep.  51; 
Crispell  v.  Uubvis,  4  Barb.  Rep.  393  ;   Welch'*  Will,  New  York 


84  SUPERIOR  COURT. 

Legal  Observer,  153;  6  Eccl.  Rep.  465,  anon.  He  sub- 
mitted the  question  to  the  court  as  to  what  would  consti- 
tute blindness.  What  in  contemplation  of  law  amounted 
to  blindness  in  a  case  like  the  present?  If  it  was  such  a 
defect  or  failure  of  vision  as  incapacitated  the  alleged  tes- 
tator from  doing  the  act  himself,  or  acquiring  a  knowledge 
of  the  contents  of  the  instrument,  so  far  as  it  was  dependent 
on  his  own  sight,  then  he  was  unquestionably  blind  both 
in  law  and  in  fact  for  that  purpose. 

The  will  could  not  be  sustained  for  another  reason,  be- 
cause it  was  not  in  conformity  with  the  written  instructions 
from  which  it  was  drawn.  In  the  case  of  Chandler  v.  Fer- 
ris, 1  Harr.  454,  this  court  held  that  if,  in  drawing  out  a 
will  from  written  instructions,  there  were  material  variances 
from  them,  the  jury  should  be  satisfied  that  the  testator 
knew  of  the  deviations.  In  the  present  case  the  variations 
were  numerous  and  important ;  for,  in  the  first  place,  there 
was  an  entire  exemption  of  the  trustee  in  the  will  from 
any  liability  on  account  of  the  estate,  except  for  wilful 
neglect  and  default  on  his  part,  whilst  there  was  nothing 
in  the  instructions  to  that  effect.  This  express  exonera- 
tion of  the  trustee  from  all  liability  incorporated  in  the 
will  without  the  instructions  directing  it,  was  important 
and  material,  for  it  extended  much  further  than  his  ordi- 
nary exemption  as  a  trustee  by  law.  In  the  absence  of 
such  a  provision  in  the  will,  his  responsibility  as  a  trustee 
at  law  would  have  been  to  exercise  such  diligence  in  the 
management  of  the  estate  as  a  prudent  and  discreet  man 
would  exercise  in  regard  to  his  own  property;  but  he  had 
been  careful  in  this  case  by  the  will,  not  by  the  instruc- 
tions, to  make  himself  responsible  only  for  wilful  negli- 
gence. 

In  the  second  place,  there  was  a  provision  inserted  in 
the  will  for  a  fair  and  liberal  compensation  to  the  trustee, 
while  there  was  not  a  syllable  or  scintilla  of  this  to  be 
found  in  the  instructions. 

In  the  third  place,  the  ultimate  distribution  of  the  estate 
to  the  children  was  different.     In  the  will  it  was  provided 


DAVIS  et  al.  v.  ROGERS.  85 

that,  if  any  of  them  should  die  without  issue,  then  his  or 
her  share  should  go  as  directed ;  but  there  was  no  such 
limitation  or  provision  in  the  instructions. 

And  in  the  fourth  place,  by  the  directions  contained  in 
the  instructions,  the  estate  is  simply  to  be  divided  among 
the  children  on  the  arrival  of  the  youngest  at  the  age  of 
twenty-one,  and  nothing  more ;  but  by  the  will  it  is  directed 
to  be  sold  in  case  it  will  not  bear  a  division  between  them ; 
which  was  very  different. 

He  concluded  with  a  request  that  the  Court  would  charge 
the  jury  on  these  several  points,  and  in  favor  of  the  various 
legal  positions  which  he  had  assumed  in  his  argument. 

Mr.  Dallas  to  the  Jury  :  He  had  in  charge  the  honor  and 
happiness,  if  not  the  life,  of  a  member  of  the  bar  in  Dela- 
ware, and  therefore  he  should  not  stop  to  deal  with  mere 
technicalities  as  to  the  onus  probandi  in  the  present  case. 
He  should  content  himself  with  a  simple  reference  to  the 
cases  before  cited.  6  JEccl.  Rep.  418,  419;  1  Milne  £  Kean, 
643.  There  was  one  thing,  however,  on  which  every  one 
might  rely  in  this  country,  whatever  might  be  the  charac- 
teristic passions  and  errors  of  the  American  people,  and 
that  was  their  sense  of  justice. 

What  was  there  in  the  will  in  controversy  to  excite  the 
feelings,  or  to  justify  the  strong  and  vehement  objections 
which  had  been  urged  against  it  ?  Was  there  anything  in 
it  inconsistent  with  the  domestic  dirties  or  natural  affec- 
tions of  the  testator,  Colonel  Davis?  On  the  contrary, 
throughout  its  provisions,  his  wife  and  children  were  up- 
permost in  his  thoughts,  and  his  chief  and  only  solicitude 
seemed  to  be  to  provide  for  the  future  welfare  and  happi- 
ness of  his  offspring.  The  aggregate  amount  of  $3500 
per  annum,  until  the  youngest  child  arrived  to  the  age  of 
twenty-one  years,  was  provided  by  the  will  for  the  support 
and  maintenance  of  the  family,  besides  a  convenient  and 
comfortable  residence  in  the  city  of  Wilmington.  And 
why,  when  the  will  was  executed,  was  it  handed  over  by 
the  testator  to  Mr.  Rogers,  to  have  the  charge  and  custody 


86  SUPERIOR  COURT. 

of  it  ?  The  reason  and  answer  was  plain  and  obvious.  It 
was  because  he  had  appointed  him  his  trustee  and  execu- 
tor, and  he  was  the  proper  person  to  have  it,  as  he  was  to 
administer  his  estate  and  execute  its  provisions. 

Now  the  real  question  presented  to  them  was  this,  was 
Colonel  Davis  on  that  day  capable  of  making  a  will  ?  It 
was  said  that  he  was  old ;  but  he  was  proved  to  have  re- 
tained up  to  that  time  unimpaired  all  the  faculties  of  his 
mind,  and  no  witness  had  pretended  to  say  that  he  was 
unable  to  make  a  will ;  nor  was  there  an  earthly  doubt  on 
the  mind  of  any  one  of  the  testamentary  witnesses  that  he 
perfectly  knew  and  understood  what  he  was  doing,  and 
the  contents  of  the  will  which  he  had  just  executed.  He 
said  to  these  witnesses,  Messrs.  Gordon  and  Harrington, 
soon  after  their  arrival  at  his  house,  and  some  casual  con- 
versation had  passed  between  them,  "  I  will  be  obliged  to 
yon,  gentlemen,  if  you  will  withdraw  ;  I  desire  to  confer 
with  my  counsel,"  meaning  Mr.  Rogers,  "on  the  subject 
of  my  will;"  and,  in  accordance  with  this  intimation,  they 
retired  from  the  room,  and  he  and  Mr.  Rogers  were  left 
alone.  Now,  he  maintained,  and  the  authority  of  a  case 
which  he  had  already  cited  would  sustain  him  in  the  posi- 
tion, that  this  of  itself  was  sufficient  to  establish  the  will; 
for  in  that  ease  the  Chancellor  held  that  if  the  testator 
might  have  known  the  contents  of  the  will,  or  had  an  op- 
portunity of  knowing  them,  he,  would  be  presumed  in  law 
to  have  known  them,  and  it  would  be  sufficient  to  sustain 
the  will. 

Blindness  would  constitute  no  legal  disability,  or  inca- 
pacity to  make  a  will  ;  but  he  did  not  contend  that  the 
testator  obtained  his  knowledge  of  the  contents  of  the  will 
through  the  medium  of  the  eye,  but  through  the  medium 
of  the  ear,  and  they  had  such  a  mass  of  circumstantial  and 
documentary  evidence  that  Colonel  Davis  fully  understood 
the  contents  of  the  instrument  in  question,  as  to  make  the 
conclusion  and  conviction  that  he  did  know  the  contents 
of  it  absolutely  irresistible. 

In  the  first  place,  when  a  man  puts  his  name  to  a  piece 


DAVIS  et  al.  v.  ROGERS. 


of  paper,  the  law  presumes  he  knows  its  contents  at  the 
time  of  signing  it;  and  in  the  present  case  this  presump- 
tion was  strengthened  and  confirmed  by  the  deliberate 
manner  in  which  the  testator  signed  and  executed  the  will 
in  the  presence  of  the  subscribing  witnesses.  Besides,  the 
will  itself  was  full  of  intrinsic  evidence  that  he  knew  its 
contents.  He  could  show  from  written  evidence  that  sub- 
stantially the  same  will  had  been  made  not  less  than  six 
times  by  the  testator, — first,  in  the  will  of  1845;  secondly, 
in  the  will  of  1850,  and  the  codicils  to  it;  and,  thirdly,  in 
two  sets  of  instructions  for  the  will  of  1853,  with  the  will 
itself.  These  wills  and  instructions  all  bore  the  same 
impress,  the  same  main  features,  and  every  one  of  them 
had  the  same  precise  trust  provided  for  in  it,  and  the  same 
peculiarities,  in  regard  to  the  provisions  for  his  children, 
running  through  the  whole  of  them.  The  same  compen- 
sation to  the  trustee  was  to  be  found  in  all  of  them;  and 
there  was  not  a  power  conferred  on  the  trustee  by  the  will 
of  1853,  that  was  not  conferred  by  the  will  of  1850 ;  nay, 
the  powers  conferred  by  the  earlier  wills  were  greater  than 
those  conferred  by  the  latter.  The  will  of  1845  devised 
Delamore  Place  to  his  son  Alonzo,  and  contained  the  same 
provision  to  be  found  in  the  will  of  1853  for  leasing  it; 
there  was  the  same  direction  in  each  of  his  wills  that  his 
daughters  should  be  sent,  at  a  certain  age,  to  boarding 
school,  and  the  specific  bequests  were  very  nearly  the  same 
in  all  of  them.  Now,  when  they  traced  up  all  these  vari- 
ous provisions  of  the  several  wills,  they  would  find  that 
the  finger  of  Colonel  ])avis  had  been  and  was  visible  in 
every  one  of  them,  and  that  but  one  man,  and  no  one  but 
Colonel  Davis,  could  have  conceived  and  dictated  the 
whole  of  them;  and  if  the  will  and  instructions  of  1853 
were  counterfeits  and  forgeries,  then  all  the  other  wills 
and  instructions  were  also  counterfeits  and  forgeries. 

lie  denied  that  there  were  any  essential  discrepancies 
between  the  will  of  1853  and  the  written  instructions  from 
which  it  was  drawn.  The  will  but  elaborated  and  ex- 
pressed more  fully  what  was  more  concisely  indicated  in 


88  SUPERIOR  COURT. 

the  instructions;  and  if  there  were  any  variations  in  the 
will  from  the  instructions,  he  insisted  upon  the  authority 
of  Chandler  v.  Ferris,  1  Harr.  Rep.  464,  and  Hearn  v.  Ross, 
4  lb.  46,  that  they  were  not  only  known  and  approved  by 
the  testator,  but  were  not  of  sufficient  substance  and  im- 
portance, even  if  unknown  to  him,  to  affect  the  validity  of 
the  will. 

Mr.  Davis  to  the  Jury :  After  Messrs.  Gordon,  Harrington, 
and  Rogers  had  taken  their  leave  of  Colonel  Davis,  on  the 
day  the  will  was  executed,  Mr.  Read,  who  remained,  fell 
into  conversation  with  the  latter,  when  he  inquired  of 
Colonel  Davis  why  he  had  made  another  will,  as  he  had 
witnessed  a  former  will  made  about  three  years  before  by 
him;  to  which  Colonel  Davis  replied,  pointing  to  his  little 
daughter,  who  was  present,  playing  on  the  floor,  or  passing 
at  the  moment,  that  he  wanted  to  make  provision  for  that 
child  ;  that  he  had  left  her  his  lots  on  Fourth  Street,  in  the 
city  of  Wilmington,  and  that  they  would  be  valuable  by  the 
time  she  was  grown  up.  This  was  said  by  him  within 
fifteen  minutes  after  he  had  put  his  name  to  the  will;  but 
there  was- no  such  provision  in  the  instrument.  lie  then 
made  this  point  to  the  Court,  that  if  Colonel  Davis  signed 
this  [taper  in  the  handwriting  of  Mr.  Rogers,  believing 
that  it  contained  this  devise  to  his  daughter  Harriet,  it 
was  null  and  void  as  his  last  will  and  testament. 

Again,  his  repeated  deelarations,  and  the  serious  and 
deliberate  expressions  of  his  intentions  to  leave  Delamore 
Place  to  his  son  Delaware,  and  his  refusal  to  lease  it  to 
Mi-.  Hall  for  a  longer  term  than  five  years,  because  he 
knew  that  his  son  would  be  of  age  in  that  time,  and  pre- 
pared to  take  possession  of  it,  and  the  accumulated  evidence 
ot'all  the  other  witnesses  on  that  point,  conclusively  showed 
that  Colonel  Davis  could  not  have  known  the  contents  of 
the  will  propounded,  and  that  it  was,  therefore,  not  his  will. 

When  a  party  was  in  possession  of  his  natural  faculties, 
the  law  presumed  knowledge  of  the  contents  of  his  will 
from   the  fact  of  its  execution  by  him;   but  where  he  was 


DAVIS  et  al.  v.  ROGERS.  89 

blind,  paralytic,  or  deprived  of  the  use  of  his  faculties,  so 
as  to  be  unable  to  read,  and  the  person  who  drew  the  will 
took  a  benefit  under  it,  the  law  does  not  presume  know- 
ledge of  its  contents  from  the  fact  of  execution;  but  some 
positive  proof  must  be  produced,  or  some  circumstantial 
evidence  having  the  weight  and  character  of  positive  proof, 
must  be  adduced  to  show  that  the  testator  actually  knew 
the  contents  of  the  identical  instrument  which  he  sub- 
scribed as  his  will;  because  in  such  a  case,  and  without 
such  additional  proof,  the  law  did  not  presume  that  he  had 
knowledge  of  its  contents.  But  no  such  proof  had  i>een 
produced  in  this  case,  and,  therefore,  he  should  ask  the 
Court  to  instruct  the  jury  that  they  could  not  find  this  to 
be  the  will  of  Colonel  Davis. 

It  had  been  proved  that,  for  three  or  four  years  before 
his  death,  he  was  never  seen  or  known  to  read  any  paper; 
and  it  was  proved  that  his  eyesight  was  so  much  impaired, 
that  he  was  not  able  to  read  this  paper  in  the  handwriting 
of  his  attorney,  who  drew  it  and  took  a  benefit  under  it; 
and  it  was,  therefore,  imperatively  incumbent  on  the  other 
side  to  prove  that  it  was  read  to  him,  or  that  its  contents 
were  otherwise  explained  and  made  known  to  him  through 
the  medium  of  his  hearing.  But  there  was  no  proof  that, 
at  the  time  of  its  execution,  or  at  any  time  afterwards, 
Colonel  Davis  was  made  acquainted  with  its  contents. 
The  fact  that  the  old  man  was  hard  of  hearing,  and  that 
no  note  or  sound  of  reading  was  heard  by  Mr.  Gordon  or 
Mr.  Harrington,  while  they  were  walking  the  porch  within 
a  few  feet  of  the  room  and  place  where  Colonel  Davis  and 
Mr.  Rogers  were  together,  was  strong  and  conclusive  evi- 
dence that  the  will  was  not  read  that  day  to  him. 

lie  then  proceeded  to  note  and  comment  upon  the  dis- 
crepancies between  the  will  and  the  instructions;  the  state- 
ment that  he  had  provided  for  his  former  children,  which 
was  not  in  the  instructions,  and  which  was  untrue,  although 
inserted  in  the  will;  in  the  order  to  pay  debts;  in  varying 
the  compensation  and  legal  responsibility  of  the  trustee; 
in  the  payment  of  annuities  ;  the  transmission  of  the  estate 

7 


HO  SUPERIOR  COURT. 

on  the  death  of  any  of  the  children ;  in  the  power  given 
by  the  will  to  the  trustee  to  sell  the  whole  estate  without 
bond  or  security,  in  case  it  would  not  divide;  and  in  the 
estate  given  to  the  widow  in  lieu  of  dower.  In  all  these 
material  provisions  there  were  marked  and  material  dis- 
crepancies between  the  will  and  the  instructions,  which 
could  not  fail,  on  the  authority  of  the  cases  cited  on  the 
other  side,  to  invalidate  the  former  in  the  absence  of  any 
proof  that  they  were  known  and  approved  by  the  testator. 

The  Court,  Harrington,  Ch.  ./.,  charged  the  jury :  On  the 
5th  of  July,  1853,  Samuel  B.  Davis,  long  a  resident  of  this 
county,  put  his  signature  to  a  paper  writing  which  he  then 
stated  was  his  last  will  and  testament,  in  the  forms  of  law 
required  as  the  evidence  of  so  important  an  act  as  the  tes- 
tamentary disposal  of  a  man's  property.  The  execution 
of  this  paper  has  thus  been  proved.  It  is  to  be  taken  to 
be  the  will  of  Colonel  Davis,  if  nothing  more  appear  either 
to  impeach  or  to  support  it.  It  needs  no  further  support 
on  the  part  of  those  who  set  it  up  lor  a  will,  until  some- 
thing is  shown  to  destroy  or  to  impair  the  credit  which  it 
derives  from  the  fact  that  it  was  signed  as  a  will,  and  at- 
tested as  a  will,  and  published  as  his  will,  by  the  testator 
himself.  This  is  what  is  meant  by  primd  fork  proof  or 
proof  of  the  faction  ;  a  proof  which,  in  ordinary  cases,  im- 
poses upon  any  party  denying  the  legal  conclusion  which 
is  to  )>e  drawn  from  its  execution,  the  burden  of  showing 
that  it  is  not  the  will  which  these  formalities  make  it  seem 
to  be. 

Testamentary  power  is  an  important  attribute  of  the 
right  of  property,  and  a  great  stimulus  to  its  acquisition, 
and  to  the  industry  and  care-taking  necessary  to  its  acqui- 
sition. The  absolute  right,  therefore,  of  disposing  of  it 
according  to  the  will  and  pleasure  of  the  possessor  is  to  be 
recognized  as  a  principle  of  justice  and  of  sound  policy. 
It  has  not  been  denied  or  restricted  in  the  argument  of  this 
case,  but  it  is  conceded  that  Colonel  Davis  had  the  right 
to  dispose  of  the  large  estate  which  he  possessed  according 


DAVIS  et  al.  v.  KOGEES.  91 

to  his  will  and  pleasure.  It  will  be  for  you  to  decide 
whether  he  has  done  so. 

The  paper  which  I  hold  in  my  hand  is  proposed  to  you 
as  the  evidence  of  the  will  of  Colonel  Davis.  It  is  opposed 
and  objected  to  by  the  widow  and  children,  who  deny  that 
it  contains  the  evidence  of  his  testamentary  purposes,  and 
who  affirm  that  it  never  was  his  will.  The  register,  to 
whom  it  was  offered  for  probate,  has  seen  proper  to  take 
the  advice  of  a  jury  on  this  question ;  and  has  sent  to  us 
for  trial  the  issue,  which  you  have  been  qualified  to  an- 
swer, "  whether  the  paper  writing,  purporting  to  be  the 
last  will  and  testament  of  Samuel  B.  Davis,  deceased,  and 
heretofore  admitted  to  probate,  is  or  is  not  the  last  will 
and  testament  of  the  said  Samuel  B.  Davis,  deceased?" 

This,  gentlemen,  is  a  question  of  fact.  It  is  so  purely  a 
question  of  fact  that  formerly  it  was  not  the  practice  for 
the  Court  to  charge  the  jury  upon  the  trial  of  such  issues, 
supposing  that  its  duty  was  discharged  by  merely  presiding 
at  the  trial,  regulating  the  proceedings,  and  deciding  ques- 
tions of  evidence  that  might  arise.  Of  late  years  the  prac- 
tice has  been  for  the  Court  to  add  a  brief  charge  to  the 
jury,  with  a  view  to  direct  attention  to  proper  points  for 
their  consideration.  We  have  been  asked  to  do  so  on  this 
occasion ;  and  certain  matters  have  been  presented  to  us 
as  legal  propositions,  upon  which  we  are  asked  to  charge 
you ;  but  after  all,  gentlemen,  what  law  can  there  be  ap- 
plicable to  the  solution  of  a  mere  question  of  foot,  which 
is  not  the  law  of  common  sense,  belonging  no  less  to  others 
than  to  the  judicial  mind,  and  very  fully  shared  by  the 
intelligent  jury  whose. duty  it  is  to  decide  this  case. 

A  will, — what  is  it?  and  how  is  it  to  be  known?  Does 
it  rest  in  the  speech  by  which  it  is  manifested,  or  the  paper 
through  which  it  is  supposed  to  be  communicated,  or  the 
act  by  which  it  is  apparently  indicated?  All  these  are  but 
mediums  through  which  the  purpose  of  the  testator  is  to 
he  understood  by  others.  The  will  rests  in  his  intention 
and  purpose;  the  knowledge  of  which,  though  we  may 
not  in  the  nature  of  things  ever  reach  it  with  demonstrative 


92  SUPERIOR  COURT. 

certainty,  we  satisfactorily  attain  to,  just  in  proportion  to 
the  safety  and  reliability  of  the  medium  through  which  it 
is  sought  This  is  a  common  sense  remark,  appreciable 
by  you  as  fully  as  by  any  one,  and  yet  it  contains  the  foun- 
dation and  substance  of  all  the  law  on  this  subject.  Does 
a  man,  in  the  full  possession  of  his  faculties,  indicate  by 
word,  or  writing,  or  gesture,  that  it  is  his  intention  a  cer- 
tain person  shall  have  his  property  upon  his  decease?  That 
is  his  willt  even  though  the  policy  of  the  law  may  riot  allow 
it  thus  to  be  proved ;  and  a  man,  who,  from  any  defect, 
mental  or  physical,  or  from  mistake  or  deception,  should 
in  all  the  forms  of  law  dispose  of  his  property  as  he  did 
not  in  truth  mean  to  dispose  of  it,  would  not  thereby  ex- 
press his  intention,  and  the  instrument  would  not  be  his 
will. 

The  force  and  value  of  the  act  done  as  indicative  of  the 
intention,  must  depend  on  all  the  cii'cumstances  surround- 
ing it.  If  a  man  capable  of  reading  a  paper  executes  it 
with  due  formality,  it  is  a  reasonable  inference  that  he 
knows  its  contents,  and  that  it  contains  bis  intentions.  So 
strong  is  this  inference  in  case  of  the  execution  of  deeds 
and  other  instruments,  that  it  becomes  a  legal  conclusion 
which,  under  ordinary  circumstances,  the  party  is  not  per- 
mitted to  deny;  and  this  has,  according  to  some  of  the 
cases  which  you  have  heard  cited,  been  applied  even  to 
wills.  You  heard  the  question  argued  on  an  objection 
which  was  made  to  our  admitting  parol  declarations  of  the 
testator  to  contradict  the  conclusion  thus  drawn  from  the 
act  of  executing  the  paper,  an  argument  which  was  based 
on  the  d(/'il  as  well  as  the  reasonable  inference  from  that 
act:  but  we  considered,  as  it  has  heretofore  been  adjudged 
by  our  courts,  that  there  is  no  such  legal  conclusiveness  to 
be  given  to  the  formal  act  of  executing  a  paper  lor  a  will, 
a>  to  preclude  proof  arising  from  the  declarations  and  acts 
of  the  testator,  before,  at  the  time,  or  after,  and  all  the 
surrounding  eircuinstan<-es,  that  the  paper  is  not  his  will. 
(ienerally  the  animus  te.--fundi  is  the  natural  and  primary 
inference  from  the  act  of  signing  and  formal  publication; 


DAVIS  et  al.  v.  ROGERS.  93 

but  this  inference  may  be  weakened  or  destroyed  by  any 
attending  circumstances  of  sufficient  force,  by  evidence  of 
the  weakness  or  incapacity  of  the  testator  to  do,  or  of  the 
want  of  intention  actually  to  do,  what  he  seems  to  do  by 
that  act.  This  is  not  admitting  parol  evidence  to  vary  the 
will,  but  to  ascertain  whether  it  is  really  the  will  of  the 
decedent. 

We,  therefore,  throw  the  case  open  upon  the  evidence, 
not  only  in  conformity  with  former  practice,  but  as  re- 
quired by  our  judgment  of  the  law,  now  again  confirmed 
upon  full  and  forcible  argument.  Proof,  therefore,  satis- 
factorily made,  of  instructions  given  by  the  deceased ;  of 
his  declarations  respecting  his  intentions;  of  his  known 
affections  or  dislikes ;  of  the  position  and  quality  of  his 
estate;  of  previous  testamentary  intentions;  of  instructions 
or  actual  dispositions ;  of  his  own  condition  in  reference  to 
health  or  disease,  of  body  or  of  mind ;  his  physical  infirmi- 
ties, especially  of  the  organs  called  into  action  in  making 
or  understanding  a  will, — all  these  are,  in  our  judgment, 
proper  subjects  of  consideration  on  the  important  ques- 
tion, whether  the  paper  does  or  does  not  contain  the  real 
testamentary  intentions  and  wishes  of  the  party  who  signs 
it.  Take  them  all,  gentlemen,  and  review  the  testimony 
on  these  and  all  other  matters  bearing  on  this  question;  I 
need  not,  and  I  will  not,  particularize  them ;  I  might  omit 
something  in  your  view  important,  or  present  something 
differing  in  some  respects  from  your  views  of  the  evidence 
of  it ;  they  are  all  yours,  their  force  as  well  as  their  ex- 
istence, and  you  must  decide  upon  them.  The  whqle  evi- 
dence has  been  laid  before  you  with  great  propriety  both 
of  question  and  answer,  studiously  avoiding  everything 
immaterial,  and  plainly  presenting  everything  that  might 
tend  to  elucidate  the  great  question  whether  Colonel  Davis 
made  this  paper  with  a  knowledge  of  its  contents,  and  whether 
it  expresses  his  testamentary  purposes. 

I  shall  mention  only  such  facts  as  must  be  stated  in 
the  legal  positions  necessary  to  be  noticed,  and  always  sub- 
ject to  your  correction.      Colonel  Davis  attained  an  ad- 


94  SUPERIOR  COURT. 

vanced  age ;  he  was  several  years  over  eighty  when  this  paper 
was  signed;  he  was  more  or  less  blind;  more  or  less  deaf; 
the  former  from  disease,  relieved  partially  at  one  time  by 
an  operation ;  the  latter  from  the  ordinary  consequence  of 
advancing  age,  and  the  extent  of  which  we  specially  submit 
to  your  decision ;  but  as  to  his  mental  capacity,  it  has  not 
been  questioned  but  that  he  was  competent  to  make  a  will. 
He  made  a  will  prior  to  1845,  a  portion  of  the  contents  of 
which  has  been  proved  by  Mr.  Huffington.  He  made  a 
will  in  1850,  which  is  in  evidence ;  and  he  executed  this 
paper  as  his  will  in  1853.     Is  that  his  will  ? 

In  conducting  your  examination  through  the  facts  to  a 
solution  of  this  question  there  are  some  rules  of  law  that 
may  aid  you.  One  is  the  onus  probandi.  We  have  re- 
marked upon  this  before.  The  party  who  alleges  the  will 
must  prove  that  it  was  made  as  a  will  and  with  a  will,  by  a 
party  capable  of  doing  the  act,  having  the  knowledge  that 
he  was  doing  it,  and  having  knowledge  of  the  contents  of 
the  paper  which  professes  to  be  the  evidence  of  his  testa- 
mentary purpose.  It  is  not  essential  to  be  proved  in  any 
case  that  the  will  was  actually  read  over  by  or  to  the  testa- 
tor, if  there  be  other  evidence  sufficient  to  satisfy  the  jury 
that  he  was  made  acquainted  with  its  contents.  A  blind 
man  may  make  a  will ;  a  valid  will  may  be  drawn  by  a 
party  taking  an  interest  under  it;  but  the  blindness  of  the 
testator,  or  the  interest  of  the  party  drawing  and  attending 
to  the  execution  of  the  instrument,  are  circumstances  tend- 
ing to  put  the  jury  on  their  guard  in  scrutinizing  the  evi- 
dence which  is  ottered  to  show  knowledge  of  its  contents. 
In  Harrison  v.  Brown,  3  Wash.  C.  C.  Hep.  584,  the  propo- 
sition was  submitted  that  it  was  necessary  to  prove  the 
reading  over  of  the  will;  but  Judge  Washington  said  it 
was  not  necessary,  in  order  to  establish  a  will,  that  the 
person  claiming  under  it  should  prove  that  it  was  read 
over  to  the  testator  in  the  presence  of  the  attesting  or  of 
other  witnesses.  The  law  presumes,  in  general,  that  the 
will  was  read  by  or  to  the  testator.  "  But  it'  evidence  be 
given  that  the  testator  was  blind,  or  from  any  cause  inca- 


DAVIS  et  al.  v.  EOGERS.  95 

pable  of  reading;  or  if  a  reasonable  ground  is  laid  for  be- 
lieving that  it  was  not  read  to  him,  or  that  there  was  fraud 
or  imposition  of  any  kind  practised  upon  the  testator,  it  is 
incumbent  on  those  who  would  support  the  will  to  meet 
such  proof  by  evidence,  and  to  satisfy  the  jury  either  that 
the  will  was  read,  or  that  the  contents  were  known  by  the 
testator."  [See  also  Eng.  Eccl.  Rep.  370;  Fincham  v.  Ed-> 
wards,  3  Ibid.  167 ;  Ingram  v.  Wyatt,  1  Ibid.  442 ;  Barton 
v.  Bobbins,  and  1  Wray's  Executors,  16,  293.] 

In  Barry  v.  Butler,  6  Eng.  Eccl.  Rep.  418-9,  it  is  said, 
"The  strict  meaning  of  this  term  '  onus  probandi'  is  this, 
that  if  no  evidence  is  given  by  the  party  on  whom  the 
burden  is  cast,  the  issue  must  be  found  against  him.  In 
all  cases  this  onus  is  imposed  on  the  party  propounding  a 
will;  it  is,  in  general,  discharged  by  proof  of  capacity  and 
the  fact  of  execution ;  from  which  the  knowledge  of,  and 
assent  to,  the  contents  of  the  instrument  are  assumed ; 
and  it  cannot  be  that  the  simple  fact  of  the  party  who  pre- 
pared the  will,  being  himself  a  legatee,  is  in  every  case 
and  under  all  circumstances  to  create  a  contrary  presump- 
tion, and  to  call  upon  the  Court  to  pronounce  against  the 
will,  unless  additional  evidence  is  produced  to  prove  the 
knowledge  of  its  contents  by  the  deceased."  "All  that 
can  be  truly  said  is,  that  if  a  person,  whether  attorney  or 
not,  prepares  a  will  with  a  legacy  to  himself,  it  is  at  most  a 
suspicious  circumstance,  of  more  or  less  weight,  according 
to  the  facts  of  each  particular  case ;  in  some  of  no  weight 
at  all,  as  in  the  case  of  a  trifling  bequest  out  of  a  large 
estate,  but  varying  according  to  circumstances;  for  in- 
stance, the  quantum  of  the  legacy,  and  the  proportion  it 
bears  to  the  property  disposed  of,  and  numerous  other  con- 
tingencies; but  in  no  case  amounting  to  more  than  a  cir- 
cumstance of  suspicion,  demanding  the  vigilant  care  and 
circumspection  of  the  Court  in  investigating  the  case,  and 
calling  upon  it  not  to  grant  probate  without  full  and  entire 
satisfaction  that  the  instrument  did  express  the  real  inten- 
tions of  the  deceased.  Nor  can  it  be  necessary  that  in  all 
such  cases,  even  if  the   testator's  capacity  is  doubtful,  the 


96  SUPERIOR  COURT. 

precise  species  of  evidence  of  the  deceased's  knowledge  of 
the  will  is  to  be  in  the  shape  of  instructions  for  or  reading 
over  the  instrument.  They  form,  no  doubt,  the  most  satis- 
factory, but  they  are  not  the  only  satisfactory  description 
of  proof  by  which  the  cognizance  of  the  contents  of  the 
will  may  be  brought  home  to  the  deceased.  The  Court 
would  naturally  look  for  such  evidence ;  in  some  cases  it 
might  be  impossible  to  establish  a  will  without  it,  but  it 
has  no  right  in  every  case  to  require  it." 

These  quotations  apply  in  principle  to  the  case  before 
you,  and  you  must  apply  the  facts  of  the  case  to  them. 
Colonel  Davis  was  more  or  less  blind ;  the  draughtsman  of 
the  will,  though  not  by  name  a  legatee,  took  an  interest 
under  it  as  executor  and  trustee,  the  extent  and  force  of 
which  the  jury  must  judge  of,  in  estimating  the  amount  of 
suspicion  that  this  circumstance  throws  over  the  case,  and 
the  corresponding  necessity  it  produces  of  evidence  to  be 
required,  in  addition  to  the  act  of  formal  execution,  to 
satisfy  the  jury  that  Colonel  Davis  had  a  knowledge  of  the 
contents  of  the  will. 

The  interest  is  such  that  we  were  obliged,  under  our 
view  <>f  the  law  of  evidence,  to  exclude  the  executor  and 
trustee  from  giving  testimony  in  the  cause;  but  we  re- 
mark, also,  that  it  is  not  the  naked  interest  of  a  gratuitous 
legatee,  but  an  interest  with  an  obligation  of  service.  We 
leave  its  force  in  this  connection  to  your  judgment;  ami 
as  to  the  relation  of  attorney  and  client  existing  between 
tin:  draughtsman  and  the  supposed  testator,  it  is  not  an  ab- 
solutely disqualifying  relation,  but  is  to  lie  considered  solely 
with  reference  to  its  bearing  upon  the  question  what 
amount  of  evidence  of  knowledge  of  contents  the  jury  will 
require  to  be  satisfactorily  proved  in  order  to  establish  the 
paper  as  a  will.  In  most  cases,  an  attorney  drawing  a 
client's  will,  would  not  be  a  circumstance  of  remark,  even 
where  lie  took  an  interest  under  it.  as  where  proof  of  capa- 
city and  of  the  furttrm  are  both  complete;  in  others,  where 
capacity  or  knowledge  of  contents  is  the  point  of  conside- 
ration, the  circumstance  may  attract  more  or  less  attention 


DAVIS  et  al.  v.  EOGERS.  97 

from  the  parties  and  the  attending  circumstances.  As  a 
general  principle  the  law  does  not  imply  a  controlling  in- 
fluence of  a  lawyer  over  his  client. 

The  contestants  ask  us  to  charge  that  if  the  proof  estab- 
lishes either  inability  of  the  testator  from  blindness  to  read 
the  will  for  himself,  or  that  an  interest  is  shown  in  the 
draughtsman  of  the  will  and  person  managing  its  execution, 
the  will  fails,  unless  there  be  proof  affirmative,  beyond  the 
act  of  execution,  that  it  was  read  to  the  testator,  or  a  know- 
ledge of  its  contents  was  otherwise  communicated  to  him. 
"We  have  answered  this  proposition  affirmatively,  in  the 
quotations  before  made,  and  to  which  I  have  asked  the 
jury  to  apply  the  facts  in  evidence. 

But  if  that  state  of  things  is  made  out,  it  is  alleged,  on 
the  part  of  the  executor,  that  knowledge  of  the  contents 
of  this  will  and  proof  of  intention  are  made  out,  by  the 
correspondence  of  its  contents  with  previous  wills  made 
by  Colonel  Davis  ;  by  the  instructions  given  to  Mr.  Rogers 
to  draw  the  will ;  by  the  circumstances  attending  its  exe- 
cution, other  than  the  mere  fact  of  signing  and  publication, 
which,  they  say,  afford  proof  of  actual  reading,  or  at  least 
the  probability  of  it,  in  the  absence  of  the  testimony  of  the 
only  person  who  knows  the  truth  of  that  matter,  but  who 
cannot,  by  reason  of  his  relations  to  the  will,  be  heard. 
To  this  the  contestants  answer,  denying  the  correspondence 
of  this  with  previous  wills;  denying  the  instructions,  or 
suggesting  that  the  proof  of  the  instructions  is  weaker  than 
that  of  the  paper  they  are' invoked  to  support ;  that  there 
are  many  discrepancies  between  the  supposed  instructions 
and  the  instrument  on  trial  sufficient  in  themselves,  if  not 
shown  to  have  been  explained  to  the  testator,  to  render  the 
will  void;  and  that,  in  respect  to  any  evidence  of  actual 
knowledge  of  the  dispositions  contained  in  this  paper,  it 
has  been  met  by  proof  of  declarations  made  by  the  testa- 
tor, that  it  contained  other  and  different  dispositions. 

Gentlemen,  we  do  not  think  it  proper  To  enter  upon 
anything  like  an  application  of  the  evidence  to  these  se- 
veral propositions;   the  case  has  been  fully  and  ably  argued 


98  SUPERIOR  COURT. 

on  them  all,  and  that  argument  must  be  fresh  in  your  re- 
collection. "We  only  call  your  attention  to  the  topics,  and 
leave  the  consideration  of  them  to  you.  As  to  instruc- 
tions, if  they  are  satisfactorily  proved  to  have  emanated 
from  the  testator,  with  knowledge  of  their  contents,  they 
are  evidence  of  great  force  in  support  of  a  will  drawn  in 
pursuance  of  them ;  and,  being  generally  but  heads  or  sug- 
gestions, the  proper  amplification  of  them  in  the  more 
formal  instrument  is  right  and  proper;  but  as  to  essential 
variations,  this  Court  said  in  Chandler  v.  Ferris  that  if  the 
jury  were  of  opinion  that  these  differences  existed  to  such 
an  extent  as  to  make  the  will  essentially  different  from  the 
instructions,  they  must  then  judge  from  the  evidence 
whether  these  deviations  were  made  with  the  knowledge 
and  consent  of  the  testator.  If  they  were  not  made  known 
to  him,  if  the  will  was  not  read  over,  or  its  contents  and 
variations  from  the  instructions  otherwise  explained  to 
him,  then  it  would  not  be  his  will ;  but  if  he  knew  of  and 
approved  the  alterations,  he  adopted  them  by  the  execu- 
tion of  the  will,  and  the  same  ought  to  be  confirmed.  [1 
Hair.  Rep.  404.]  The  same  remark  may  be  made,  gene- 
rally, of  all  declarations  made  by  the  testator,  in  reference 
to  what  was  to  be,  or  what  had  been  inserted  in  his  will. 
We  have  admitted  such  declarations  in  evidence  as  bearing 
on  the  question  whether  Colonel  Davis  knew  of  the  con- 
tents of  this  paper  and  approved  of  them,  as  to  which,  if 
there  be  satisfactory  evidence  derived  from  other  sources 
that  he  had  such  knowledge,  these  declarations  would  not 
be  allowed  to  controvert  the  more  solemn  expression  of 
intention  in  the  will  itself.  But,  in  the  absence  of  such 
other  evidence  of  knowledge  of  its  contents,  and  considered 
solely  with  a  view  to  the  question  whether  the  paper  was 
ever  read  or  explained  to  him,  declarations  satisfactorily 
proved  to  have  been  deliberately  made  by  him,  in  good 
faith  and  credited  by  the  jury,  of  testamentary  bequests 
altogether  different  from  the  bequests  of  the  will,  would  be 
evidence  to  disprove  his  knowledge  of  its  actual  contents. 
Thus  we  have  been  specially  asked  to  charge  you,  that  if 


DAVIS  et  al.  v.  ROGERS.  99- 

you  believe  from  the  evidence  that  Colonel  Davis  actually 
thought  the  Fourth  Street  property  was  devised  to  his 
daughter  Harriet,  or  that  Delamore  Place  was  devised  to 
his  son  Delaware  Davis,  in  his  will,  and  they  are  not  so 
devised,  this  would  be  evidence  that  the  contents  of  this 
paper  were  never  made  known  to  kim  so  that  he  under- 
stood it,  and  the  paper  could  not  therefore  be  established 
as  his  will.  The  two  things  are  inconsistent,  and  therefore 
could  not  exist  together.  A  person  having  testamentary 
capacity  could  not  believe  he  had  devised  important  por- 
tions of  his  estate  one  way,  while  he  had  disposed  of  them 
to  another,  on  the  same  day  of  the  execution  of  his  will, 
if  he  knew  of  the  contents  of  the  will.  At  the  same  time 
the  declaration  of  such  belief  is  open  to  any  remark  tend- 
ing to  impeach  its  force,  and  subject,  as  all  other  testimony 
is,  to  be  weighed  by  the  jury. 

The  verdict  of  the  jury  was  against  the  will. 


COURT  OF  ERRORS  AND  APPEALS. 

JUNE    TERM, 
1855. 


Union  Church  of  Africans,  defendants  below,  plaintiff  in 
error,  v.  Ellis  Sanders,  plaintiff,  below,  defendant  in 
error. 

A  writ  of  error  will  lie  to  an  order  of  the  Superior  Court  awarding  a  pe- 
remptory writ  of  mandamus,  though  not  a  judgment  at  common  law, 
under  the  provision  of  the  Constitution  which  confers  upon  the  Court 
of  Errors  and  Appeals  "jurisdiction  to  issue  writs  of  error  to  the  Su- 
perior Court,  and  to  determine  finally  all  matters  in  errof  in  the  judg- 
ments and  proceedings  of  said  court;"  which  extends  And  applies  to 
judgments  and  decisions  in  any  proceedings  in  the  latter  court  of  a  final 
character. 

Mandamus  will  not  lie  to  admit  or  restore  a  minister  who  is  wrongfully 
excluded  from  his  pulpit  and  the  exercise  of  his  spiritual  functions  by 
the  corporate  trustees  and  congregation  of  the  church,  if  there  is  no  en- 
dowment or  emolument  other  than  voluntary  contributions,  annexed 
to  the  office  and  dependent  on  the  exercise  of  its  functions,  or  he  has  no 
temporal  right  involved  in  the  matter  and  affected  by  the  exclusion. 

Without  some  temporal  right,  such  a.s  an  endowment,  a  fixed  emolu- 
ment, stipend  or  salary,  or  other  temporal  advantage  annexed  to  its 
functions,  his  office  is  merely  a  spiritual  or  ecclesiastical  office  ;  and  if 
wrongfully  excluded  from  it  there  is  no  legal  right  involved  in  the  case, 
and  a  court  of  law  has  no  jurisdiction  of  it.  If,  however,'  there  is  any 
such  temporal  right  attached  to  the  office  and  its  functions,  affected  by 
his  exclusion,  and  for  which  the  law  affords  no  specific  remedy,  man- 
damus will  lie  to  restore  him,  to  prevent  a  failure  of  justice  in  respect 
to  such  legal  right. 

Writ  of  error  to  the  Superior  Court  for  New  Castle 
County,  heard  before  Johns,  Chancellor,  Harrington,  Chief 
Justice,  and  Milligan  and  Houston,  .Judges. 

The  case  below  was  on  a,  writ  of  mandamus  issued  on  the 


UNION  CHURCH  v.  SANDERS.  101 

petition  and  affidavit  of  Ellis  Sanders,  the  plaintiff  below, 
to  the  Union  Church  of  Africans,  in  the  city  of  Wilming- 
ton, to  admit  him  as  elder  minister  in  the  church,  to  preach 
in  said  Union  Church  of  Africans,  whenever  he  might  see 
proper  to  do  so,  and  to  administer  the  ordinances  and  dis- 
cipline thereof,  and  to  exercise  a  pastoral  charge  over  the 
same,  with  all  the  liberties,  privileges  and  advantages  to 
the  place  and  function  of  elder  minister  in  said  church  be- 
longing and  appertaining. 

The  petition  for  the  writ  of  mandamus  set  forth  that : 
In  the  year  1813  certain  free  colored  people  residing  in 
the  then  borough  (now  city)  of  Wilmington,  associated 
themselves  together  as  a  religious  society,  or  congregation, 
and  on  the  21st  day  of  July,  in  said  year,  agreeably  to  the 
provisions  of  the  act  of  the  General  Assembly  of  said  State, 
entitled  "  An  act  to  enable  all  the  religious  denominations 
in  this  State  to  appoint  trustees,  who  shall  be  a  body  cor- 
porate for  the  purpose  of  taking  care  of  the  temporalities 
of  their  respective  congregations,"  passed  at  Dover,  Feb- 
ruary 3,  1787,  the  said  religious  society,  after  due  notice 
given,  proceeded  to  elect  from  their  number  seven  persons 
to  be  trustees  of  said  society,  to  wit :  John  Simmons,  John 
Kelby,  Peter  Spencer,  Scotland  Hill,  David  Smith,  Jacob 
March,  and  Benjamin  Webb,  which  said  trustees  upon  their 
election  took  upon  themselves  the  name  of  "Union  Church 
of  Africans,"  and  certified  the  same  in  due  form,  according 
to  the  act  aforesaid,  to  the  recorder  of  deeds  of  the  county 
aforesaid,  to  be  recorded  in  his  office,  and  said  certificate 
is  duly  recorded  in  said  office  in  Book  M,  vol.  3,  page 
470,  &c,  by  which  said  premises  the  said  trustees  and 
their  successors  became  by  virtue  of  said  act  a  body  politic 
and  corporate,  in  deed,  fact,  name,  and  law,  to  Lave  perpe- 
tual succession,  and  by  their  said  name  were  authorized  to 
take  and  hold  property  real  and  personal  tor  the  use  of 
their  said  society  or  congregation. 

That  on  the  said  21st  day  of  July,  1813,  the  said  reli- 
gious society  entered  into  certain  written  articles  of  asso- 
ciation, signed  by  all  the  members  thereof,   and  recorded 


102     COURT  OF  ERRORS  AND  APPEALS. 

with  the  above-mentioned  certificate  of  the  trustees,  the 
purport  and  object  of  which  articles  was  chiefly  to  set  forth 
the  purposes  of  the  organisation  of  said  society,  and  one  of 
which  said  articles  of  association  is  in  the  words  following, 
to  wit : 

"  Article  2.  The  said  corporation  shall  have,  hold,  pos- 
ses* and  enjoy  the  temporal  property  which  they  have  at 
this  time,  or  shall  hereafter  acquire,  in  trust  for  the  reli- 
gious uses  of  the  ministers  and  preachers  of  the  said  Union 
Church,  for  them  and  their  African  brethren  and  their  de- 
scendants of  the  African  race,  and  also  for  the  ministers 
and  teachers  of  the  African  brethren  duly  licensed  and  or- 
dained according  to  the  discipline  adopted  by  the  corpor- 
ation." 

That  the  succession  of  the  aforesaid  trustees  has  been 
continued,  by  elections  for  that  purpose  duly  had  from 
time  to  time  agreeably  to  the  said  act,  and  that  William 
Brown,  Peter  Chippy,  Henry  Richardson,  William  Black, 
Spencer  Williams,  Isaac  Parker  and  Levi  Morris  now  hold 
and  exercise  the  office  of  trustees  aforesaid. 

That  the  trustees  of  said  society  with  funds  contributed 
by  the  members  thereof,  in  the  year  1813  purchased  and 
received  for  the  use  of  said  society  a  certain  lot  of  ground 
in  Wilmington  aforesaid,  and  caused  to  be  erected  thereon 
a  church  or  place  of  religious  worship,  which  church  or 
place  of  religious  worship  has  by  the  trustees  of  said  society 
always  hitherto  been  held,  and  is  now  held  for  the  use  of 
the  members  and  the  ministers  of  said  church  duly  licensed 
and  ordained  according  to  the  rules  and  discipline  thereof. 

That  the  said  society,  after  the  election  and  incorpora- 
tion of  trustees  aforesaid,  proceeded  to  complete  their  or- 
ganization as  a  religious  society  or  church  as  follows,  to 
wit:  On  or  about  the  7th  September  in  the  year  afore- 
said, the  members  of  said  society  elected  five  persons  to 
hold  the  office  of  ruling  elders  among  them,  and  autho- 
rized said  elders  to  constitute  other  officers  for  the  spiritual 
government  of  said  society;  that  accordingly  the  persons 
so  chosen  as  ruling  elders,  on  or  about  the  14th  September 


UNION  CHUKCH  v.  SANDERS.  103 

aforesaid,  chose  and  set  apart  William  Anderson  and  Peter 
Spencer  to  be  ministers  of  said  Union  Church,  to  have  the 
pastoral  charge  thereof  and  to  exercise  all  authority.per- 
taining  to  such  office;  that  the  said  Anderson  and  Spencer 
prepared  for  the  government  of  said  society  a  system  of 
rules  and  discipline,  which  was  contained  and  set  forth  in  a 
pamphlet  entitled  the  "  Discipline  of  the  Union  Church  in 
Wilmington,  State  of  Delaware,"  which  said  Discipline  was 
by  said  society  adopted,  and  until  its  revision,  in  1841, 
hereinafter  mentioned,  was  observed  as  its  form  of  church 
government. 

That  under  the  provisions  of  said  Discipline  there  were 
to  be  in  said  church  three  orders  of  preachers,  viz.,  li- 
censed preachers,  deacons,  and  elder  ministers ;  that  li- 
censed preachers  were  such  as  might  from  time  to  time  be 
licensed  to  preach  by  the  minister  in  charge,  upon  the  re- 
commendation of  a  majority  of  the  ruling  elders;  that  such 
preachers  were  not  invested  with  the  charge  of  a  society 
or  with  authority  to  administer  ordinances,  but  were  only 
allowed  to  preach  to  such  as  would  hear  them;  that  a 
deacon  was  a  preacher  chosen  to  that  office  by  the  ruling 
elders  and  ordained  by  the  elder  minister;  that  his  office 
was  to  assist  the  elder  minister  and  to  preach  to  a  society 
or  congregation  in  the  absence  of  the  elder  minister;  that 
he  was  not  authorized  to  administer  the  sacrament  of  the 
Lord's  Supper,  nor  to  administer  discipline,  nor  was  he  in- 
vested with  the  charge  of  any  society,  except  for  the  pur- 
pose of  preaching,  baptizing  and  solemnizing  marriages  in 
the  absence  of  an  elder  minister,  and  subordinately  to  him 
when  present;  that  the  elder  minister  under  said  Disci- 
pline was  to  l>e  ordained  to  that  office  by  the  elder  minis- 
ter for  the  time  being,  with  the  approbation  of  the  ruling 
ciders  and  congregation,  and  the  elder  ministers  were  in- 
vested with  the  general  superintendence  of  all  the  societies 
composing  the  African  Union  Church;  and  that  each  elder 
minister  is,  under  the  usage  and  discipline  of  said  church, 
by  virtue  of  his  office,  the  minister  in  charge  of  any  society 
where  he  may  be. 


104  COURT  OF  ERRORS  AND  APPEALS. 

That  by  said  Discipline  it  was  provided  that  if  other  so- 
cieties should  be  organized  in  connection  with  the  original 
society  in  Wilmington,  additional  older  ministers  should 
be  ordained,  as  in  said  Discipline  is  prescribed,  to  execute, 
in  connection  with  the  aforesaid  Anderson  and  Spencer, 
the  authority  pertaining  to  such  office.  That,  in  process 
of  time,  other  societies  were  and  have  been  formed  in  the 
States  of  Delaware,  New  Jersey,  Pennsylvania,  New  York, 
and  Connecticut,  in  connection  with  the  original  society  in 
Wilmington,  subject  to  the  same  rules  and  discipline,  and 
forming  a  common  organization,  under  the  title  of  the 
"African  Union  Church;"  and  that,  from  time  to  time, 
elder  ministers,  in  addition  to  said  Anderson  and  Spencer, 
were  duly  chosen  and  ordained,  according  to  the  provisions 
of  the  aforesaid  Discipline;  to  wit,  James  Hill,  Isaac  Bar- 
ney, Ralph  Gilmore,  and  your  petitioner. 

That  the  said  Anderson,  Spencbr,  and  Hill  are  deceased  ; 
that  the  said  Gilmore  has  ceased  to  exercise  the  office  of 
elder  minister  in  said  church  ;  and  that,  consequently,  the 
said  Barney  and  your  petitioner  are  the  only  surviving  and 
acting  elder  ministers  of  the  said  African  Union  Church. 

That,  as  the  said  religious  society  increased  in  numbers, 
a  body,  known  as  the  Yearly  Conference,  came  to  be  or- 
ganized, composed  of  the  lay  elders  and  preachers  of  the 
several  societies.  That,  by  settled  usage,  the  said  Yearly 
Conference  became  invested  with,  and  has  always  exer- 
cised, a  general  superintendence  over  the  said  societies, 
with  authority  to  adopt  such  measures  as  it  might  deem 
expedient  for  their  common  welfare. 

That,  about  the  year  1841,  for  the  purpose  of  adapting 
the  form  of  government  of  said  church  to  the  increased 
number  of  societies  in  connection  with  it,  the  said  Ander- 
son, Spencer,  and  Harney,  then  the  elder  ministers  of  said 
church,  prepared  for  said  church  a  revised  form  of  govern- 
ment and  system  of  rules,  which  are  contained  and  set 
forth  in  a  book  entitled,  "  The  Discipline  of  the  African 
Union  Church  in  Wilmington,  Delaware;  second  edition, 
enlarged;"    and  that   said  last-mentioned    Discipline  was, 


UNION  CHURCH  v.  SANDERS.  105 

and  ever  since  has  been,  received  and  observed  by  the 
Yearly  Conference  of  said  church,  and  by  the  societies  in 
said  church,  as  their  form  of  church  government.  That, 
by  said  last-mentioned  Discipline,  no  change  whatever  was 
made  in  respect  to  the  offices  or  functions  of  deacons  or 
elder  minister  in  said  church  as  the  same  are  above  set 
forth.  That,  by  said  Discipline,  it  was  provided  that  there 
should  be  a  Yearly  Conference,  as  above  mentioned,  to  sit 
in  Wilmington  aforesaid,  in  the  last  week  in  April,  and 
also  in  the  city  of  New  York,  in  the  third  week  in  Sep- 
tember. 

Your  petitioner  further  showeth  that  he  duly  became  a 
member  of  one  of  the  societies  of  said  African  Union 
Church;  to  wit,  a  society  formed  at  Christiana,  in  this 
State,  in  or  about  the  year  1815  ;  that,  soon  afterwards,  he 
was  duly  licensed  as  a  preacher  in  this  church ;  that,  in 
the  year  1835,  he  was  chosen  by  the  elders  of  his  said  so- 
ciety to  the  office  of  deacon,  and  was  thereupon  ordained 
to  said  office  by  Peter.  Spencer,  then  elder  minister  in  said 
church,  agreeably  to  the  provisions  of  the  Discipline 
thereof;  that  lie  continued  to  preach  as  a  deacon  in  the 
said  African  Union  Church  until  the  year  1846;  in  the 
month  of  April  of  which  year  he  was  nominated,  accord- 
ing to  the  usage  of  said  church  in  such  cases,  by  a  Yearly 
Conference,  then  sitting  in  Wilmington  aforesaid,  to  the 
office  of  elder  minister  in  said  African  Union  Church,  and 
with  the  approval  of  the  ruling  elders  and  of  the  said  so- 
ciety in  Wilmington,  was,  in  due  form,  according  to  the 
discipline  aforesaid,  ordained  to  said  office,  on  the  27th 
day  of  April  aforesaid,  by  Isaac  Barney,  then  elder  minister 
in  said  church.  That  thenceforth  he  became,  agreeably 
to  the  said  Discipline,  associated  with  the  said  Barney  in 
the  charge  of  the  societies  composing  the  said  African 
Union  Church. 

That  the  said  Barney,  residing  in  the  city  of  New  York, 
assumed  more  particularly  the  charge  of  the  northern  so- 
cieties in  said  church;  and  that  the  southern  societies, 
including   the  said  original   society   in   Wilmington,  fell 


106  COURT  OF  ERRORS  AND  APPEALS. 

under  the  immediate  charge  and  superintendence  of  your 
petitioner  as  elder  minister  as  aforesaid. 

Your  petitioner  showeth  that,  by  virtue  of  his  office  of 
elder  minister  as  aforesaid,  and  according  to  the  usages 
and  discipline  of  said  church,  it  is  his  duty  and  privilege 
to  preach  in  said  Union  Church  at  "Wilmington  whenever 
he  may  6ee  proper  so  to  do,  and  to  administer  the  ordi- 
nances and  discipline  thereof,  and  to  exercise  a  pastoral 
charge  over  the  same.  Yet  your  petitioner  humbly  showeth 
that  he  has,  by  the  present  trustees  of  said  church  above 
named,  been  forcibly  excluded  from  said  church,  and  de- 
barred from  performing  the  duties  and  exercising  the  rights 
above  stated  as  pertaining  to  his  said  office,  and  that  he 
is  now  so  excluded  and  debarred. 

Wherefore,  having  no  other  legal  remedy  in  the  pre- 
mises, your  petitioner  humbly  prays  this  Honorable  Court 
to  issue  a  writ,  of  the  said  State,  of  mandamus,  directed  to 
the  said  Union  Church  of  Africans,  commanding  them  to 
admit  your  petitioner  to  preach  in  the  said  Union  Church 
at  "Wilmington  whenever  he  may  see  proper  so  to  do,  and 
to  administer  the  ordinances  and  discipline  thereof,  and  to 
exercise  a  pastoral  charge  over  the  same,  or  to  show  cause 
to  the  contrary. 

On  the  foregoing  petition,  sustained  by  affidavit,  a  rule 
was  obtained  at  the  May  Term,  1852,  to  show  cause  where- 
fore a  writ  of  peremptory  mandamus  should  not  issue  to 
restore  the  plaintiff  in  the  rule  to  his  office  as  elder  minister 
in  the  church,  in  aecordance  with  the  prayer  of  his  peti- 
tion ;  and  an  alternative  mandamus  was  issued,  to  which 
the  defendant  below  made  return  that  the  plaint,  allega- 
tions', and  matters  contained  in  the  petition,  were  not  the 
proper  subject-matter  of  mandamus,  because  the  office  of  a 
preacher  or  elder  minister,  or  the  right  to  exercise  a  pas- 
toral charge  in  said  church,  was  not  an  office  known  to 
the  law;  that  there  were  no  fees  or  salary  attached  to  it; 
and  that  the  incorporation  of  said  church  was  confined  to 
the  temporal  concerns  of  said  society  or  congregation,  ac- 


UNION  CHURCH  v.  SANDERS.  107 

cording  to  the  provisions  of  the  act  of  the  General  Assem- 
bly, entitled,  "  An  act  to  enable  the  religious  denomina- 
tions in  this  State  to  appoint  trustees,  who  shall  be  a  body 
corporate^,  for  the  purpose  of  taking  care  of  the  temporali- 
ties of  their  respective  congregations,"  under  and  by  virtue 
of  which  the  said  Union  Church  of  Africans  was  alone  in- 
corporated ;  and  that  the  said  Ellis  Sanders  was  not  an 
elder  minister  in  said  church,  nor  was  it  his  duty  or  right 
to  preach  in  said  church  whenever  he  might  see  proper  to 
do  so,  nor  to  administer  the  ordinances  and  discipline 
thereof,  nor  to  exercise  a  pastoral  charge  over  the  same,  as 
by  the  said  writ  was  alleged.  And  that  it  was,  moreover, 
expressly  provided  in  the  articles  of  association  of  said 
church,  in  the  sixth  article  thereof,  "  that  no  minister  or 
teacher  should  be  privileged  to  preach  or  exhort  in  said 
church  but  with  the  consent  of  the  trustees  and  a  majority 
of  said  congregation,"  which  consent  had  not  been  given ; 
but  it  was  and  is  denied  by  the  said  Union  Church  to  the 
said  Ellis  Sanders  to  preach  in  the  said  church,  or  to  ad- 
minister the  ordinances  and  discipline  thereof,  or  to  exer- 
cise a  pastoral  charge  over  the  same. 

At  the  next  December  Term  of  the  Court,  after  argument 
by  counsel,  the  rule  was  discharged ;  but  at  the  ensuing 
May  Term,  1853,  on  the  application  of  the  counsel  for  the 
plaintiff  below,  a  reargument  of  the  case  was  ordered  by 
the  Court,  which  was  reheard  at  a  subsequent  term,  when 
the  rule  for  a  peremptory  mandamus  was  made  absolute. 
The  counsel  for  the  defendant  below  then  moved  the  Court 
for  leave  to  amend  his  return  to  the  alternative  mandamus 
and  to  file  a  supplemental  return,  which  the  Court  refused. 
At  this  stage  of  the  proceeding  the  writ  of  error  was  sued 
out. 

J).  M.  Botes,  for  defendant  in  error:  The  first  applica- 
tion in  the  Court  below  was  for  an  alternative  mandamus, 
which  was  granted,  to  admit  Sanders  to  the  pastorship  of 
the  church  in  question,  or  show  cause  to  the  contrary,  and 
which,  after  argument,  was  made  peremptory;  and  there- 


108  COURT  OF  ERRORS  AND  APPEALS. 

upon  an  order  was  made  by  the  Court  that  a  peremptory 
mandamus  should  issue ;  and  the  writ  of  error  which  they 
were  now  to  try  was  to  this  order  of  the  Court  below. 

He  then  submitted  a  motion  to  the  Court  to  quash  and 
dismiss  the  writ  of  error  in  the  case  on  the  following 
grounds.  No  writ  of  error  will  lie  to  an  order  of  this 
nature,  because  it  will  only  lie  to  a  final  judgment,  or  to 
an  award  in  the  nature  of  a  judgment,  or  when  the  pro- 
ceedings are  according  to  the  course  of  the  common  law — 
which  mean  the  same  thing — to  a  judgment,  or  to  proceed- 
ings terminating  in  a  judgment.  3  Bac.  Abr.  325,  329;  3 
Black.  Com.  35.  The  proceeding  by  mandamus  was  ori- 
ginally merely  a  part  of  the  general  supervisory  powers  of 
the  Court  of  King's  Bench  over  corporations.  The  power 
of  that  Court  to  issue  mandamus,  which  is  a  prerogative 
writ,  and  not  a  writ  of  right,  was  introduced  to  prevent 
disorder  and  a  failure  of  justice,  or  defect  of  police,  and 
because  the  matter  complained  of  concerned  the  public. 
Rex  v.  Barker,  3  Burr.  1267. 

Upon  the  direct  question  presented  in  this  case,  how- 
ever, whether  a  writ  of  error  will  lie  to  a  decision  or  order 
of  the  Court  below,  granting  or  refusing  a  writ  of  manda- 
mns,  the  decisions  arc  numerous  that  it  will  not ;  but  I  shall 
cite  only  two  o\'  them, — the  first  of  which  is  the  case  of 
77''  Dean  and  Chapter  of  Dublin  v.  The  King,  1  Bro.  Pari. 
Otses,  !'■■>;  and  the  second  is  Pender  v.  Hurl,  3  Ibid.  505. 
And  it  ought  not  To  lie,  because  it  is  not  a  writ  of  right, 
bur  is  prerogative  in  its  character,  and  it  is  wholly  discre- 
tionary with  the  Court,  as  much  so  as  a  nonsuit,  and  because 
the  granting  or  refusing  o\'  it  determines  nothing  between 
the  parties.  3  Bac.  Abr.  328 ;  Tapp.  on  JIand.  58  (74 
Lair  I/d,r.)\  12  Peters  Rep.  G20.  Awarding  thewrit.de- 
tennine>  definitively  no  question  of  right  as  between  the 
parties  to  it;  but  it  merely  restores  a  person  ejected  to  the 
office  from  which  he  has  been  driven  or  excluded,  and 
thus  prevents  the  public  inconvenience  which  might  arise 
without  it,  and  which  would  otherwise  have  a  tendency  to 


UNION  CHURCH  v.  SANDERS.  109 

encourage  disputes  and  litigation,  and  to  keep  it  up  until 
the  terra  of  office  expired. 

Thus  stood  the  law  on  the  subject  in  England  until  the 
statute  of  Anne  was  enacted,  which  provided  that  the  re- 
turn to  the  writ  might  be  traversed,  but  before  which  time 
it  could  not  be  denied  or  controverted  by  a  traverse. 
Afterward,  when  the  proceeding  was  under  that  statute, 
the  return  was  traversed,  issue  was  joined,  the  facts  alleged 
and  disputed  were  tried  and  determined  as  in  other  suits, 
which  assimilated  it  to  an  action  at  common  law,  and  a 
judgment  was  rendered  and  costs  were  allowed.  Tapp.  on 
Mand.  58,  note  a,  397  (74  Law  Libr.  435).  Such  is  now 
the  practice  in  England  under  that  statute,  and  to  such  a 
judgment  it  is  held  that  a  writ  of  error  will  lie.  But  it 
does  not  follow  from  this  that  the  same  is  the  case  here ; 
for  it  has  been  decided  that  the  statute  of  Anne  is  not  in 
force  in  this  State.  The  State  v.  The  Wilmington  Bridge 
Company,  3  Harr.  Rep.  540.  The  statute  of  Anne  has  been 
re-enacted  in  New  York,  and  this  question  has  been  settled 
in  that  State  as  it  has  been  in  England ;  and  accordingly  it 
has  there  been  held  and  decided  that  when  the  proceedings 
in  mandamus  are  under  the  statute  a  writ  of  error  will  lie, 
but  not  otherwise,  as  where  the  case  was  summarily  dis- 
posed of  by  the  Court  on  the  return,  without  a  traverse  by 
the  opposite  party.    People  v.  Brooklyn,  13  Wend.  130. 

I  have  found  no  case  of  mandamus  in  which  it  was  held 
that  a  writ  of  error  would  lie,  except  where  they  have  a 
statute  similar  to  that  of  Anne  on  the  subject.  Our  statute 
in  regard  to  writs  of  error  evidently  contemplates  and  re- 
lates only  to  cases  in  which  a  judgment  has  been  rendered. 

J.  Wales,  for  the  plaintiff  in  error:  The  question  pre- 
sented in  this  case  is  a  new  as  well  as  an  important  one  in 
this  State,  for  he  believed  that  it  was  the  first  appearance 
of  any  question  on  proceedings  by  mandamus  in  our  Court 
of  Errors  and  Appeals.  The  motion  to  dismiss  the  writ  is 
founded  on  an  antiquated  notion  of  the  law  as  applicable 
to  it  at  the  present  day.     The  writ  of  mandamus  was  ori- 


110  COURT  OF  ERRORS  AND  APPEALS. 

ginally  a  prerogative  writ,  and  its  use  began  as  early  as 
Edward  the  First,  or  Edward  the  Seeond,  and  was  after- 
wards extended  in  its  application.  But  we  know  nothing 
of  prerogative  writs  in  this  State,  and  here,  as  at  the  pre- 
sent time  in  England,  its  original  nature  has  been  changed, 
and  it  has  become  an  ordinary  form  of  proceeding  to  settle 
disputes  inter  partes  as  a  writ  of  right.  In  this  country  it 
never  had  any  form  of  prerogative,  whilst  in  that  country 
the  courts  have  enlarged  the  application  of  it,  and  it  is  now 
placed  on  the  footing  of  an  original  writ  and  as  a  personal 
action.     Tapp.  on  Mand.  57,  61. 

Now,  what  are  the  issues  involved  in  this  case?  The 
complainant  charges  that  he  is  entitled  to  officiate  as  pas- 
tor in  the  Union  Church  of  Africans,  and  claims  to  be  re- 
stored to  the  office  of  elder  minister  in  the  church,  from 
which  he  alleges  he  has  been  excluded.  And  the  first 
question  presented  is  whether  the  courts  of  law  have  juris- 
diction in  the  case ;  and  is  not  this  a  grave  and  important 
question,  not  only  to  this  particular  congregation  but  in 
its  consequences  and  results  to  every  other  religious  de- 
nomination in  the  State?  Docs  it  not  involve  a  high 
ecclesiastical  right  and  privilege  on  the  part  of  this  con- 
gregation in  performing  the  religious  services  and  pre- 
serving the  discipline  of  the  church;  and  is  not  this  a 
question  tit  for  the  consideration  of  a  court  of  the  highest 
resort?  In  the  Court  below  a  peremptory  mandamus -wan 
ordered,  which  could  only  be  enforced  by  attachment  and 
imprisonment.  The  trustees  have  therefore  no  choice  but 
t<>  obey,  or  go  to  prison,  unless  they  have  redress  on  a 
writ  of  error.  It  is  an  interference  in  the  ecclesiastical 
affairs  and  management  of  the  church  with  which  the  civil 
authority  of  the  Stat*'  has  nothing  to  do;  and  are  the  eccle- 
siastical rights  of  this  religious  corporation  to  In;  thus 
affected  by  the  action  and  proceedings  of  the  Superior 
Court  and  no  writ  of  error  to  be  allowed?  The  Constitu- 
tion of  the  State,  art.  f>,  sec.  7,  provides  that  this  Court 
shall  have  jurisdiction  to  issue  writs  of  error  to  the  Su- 
perior Court,  to  determine  finally  all   matters  in  error  in 


UNION  CHUECH  v.  SANDERS.  Ill 

the  judgments  and  proceedings  of  said  Court ;  and  the  latter 
term  was  evidently  designed  to  reach  the  case  where  no 
judgment,  in  its  technical  sense,  was  rendered  in  the  Court 
below,  or  where  the  proceeding  was  not  according  to  the 
course  of  the  common  law.  Nor  is  this  a  mere  summary 
proceeding  affecting  no  right  public  or  private.  It  is  a 
proceeding  and  a  final  decision  below,  if  no  writ  of  error 
lies,  affecting  personal  liberty,  property,  and  even  con- 
science. On  the  first  hearing  of  the  case  below  it  was  dis- 
missed, but  afterwards,  and  without  any  case  then  before 
it,  the  Court  directed  the  case  to  be  reargued,  and  at  a  sub- 
sequent term  ordered  that  a  writ  of  mandamus  should  issue 
because  of  a  defect  in  the  return,  and  refused  to  allow  an 
amendment  of  it.  This,  we  maintain,  was  error  in  the  pro- 
ceeding below  sufficient  of  itself  to  entitle  us  to  the  redress 
which  we  seek  in  this  Court.  A  writ  of  error  is  a  writ  of 
right,  and  is  not  a  matter  of  mere  discretion  to  be  with- 
held or  not  at  the  will  and  pleasure  of  this  tribunal.  Nor 
is  this  a  mere  temporary  office  to  which  the  proceeding 
relates,  nor  is  it  a  question  merely  of  temporary  import, 
whether  the  complainant  in  this  case  shall  be  thrust  back 
upon  an  unwilling  and  reluctant  congregation  by  the 
strong  arm  of  the  law,  to  preach  whenever  he  pleases, 
whether  the  congregation  is  willing  to  hear  him  or  not. 
But  if  the  religious  societies  of  this  State  are  to  be  over- 
ruled and  controlled  in  such  ecclesiastical  matters  by  the 
decisions  of  our  civil  tribunals,  let  us  at  least  have  our  writ 
of  error  and  our  redress  here  in  this  Court  of  last  resort,  to 
correct  the  errors  into  which  they  will  be  peculiarly  liable, 
perhaps,  in  such  cases  to  fall. 

The  case  is  presented  on  a  long  and  minute  statement  of 
farts  contained  in  an  affidavit  of  the  complainant,  which  is 
traversed  and  denied  by  an  affidavit  of  the  like  nature  by 
the  other  parties,  with  as  much  care  and  precision  as  a  bill 
and  answer  in  chancery.  It  is,  therefore,  in  point  of  fact, 
an  action  between  the  parties  to  determine  a  matter  of 
personal  and  private;  right,  and  not  a  mere  summary  pro- 
ceeding of  the  character  for  which  the  other  side  contends; 


112     COURT  OF  ERRORS  AND  APPEALS. 

and  by  whatever  name  it  may  be  called,  whether  an  order, 
decree,  judgment,  or  sentence,  is  immaterial :  it  is,  at  all 
events,  a  final  determination  of  a  proceeding  in  the  nature 
of  a  suit,  and  a  writ  of  error  will  lie.  Clausen  v.  Shotwell, 
12  Johns,  31 ;  County  Court  of  Warren  v.  Dallitt,  2  Bibb's 
Hep.  573 ;  6  Wheat.  598 ;  Serg.  on  Const.  64 ;  Columbia  Ins. 
Co.  v.  Wheelwright  et  al.,  7  Wheat.  534. 

William  H.  Rogers,  for  the  plaintiff  in  error :  The  motion 
to  dismiss  the  writ  of  error  in  this  case  rests  on  common 
law  decisions  of  an  early  period  in  England,  and  assumes 
that  the  Superior  Court  of  this  State  derives  its  power 
from  the  same  source,  to  be  exercised  in  the  same  way. 
The  writ  of  mandamus  is  there  styled  a  prerogative  writ, 
but  the  prerogative  principle  has  no  application  to  our 
courts;  and  if  it  be  held  that  no  writ  of  error  will  lie  to 
the  Superior  Court  to  a  judgment  or  proceeding  on  a  writ 
of  mandamus,  then  it  clothes  that  tribunal  with  a  dangerous 
and  alarming  power,  without  revision,  or  review  here, 
or  elsewhere.  But  wherefore  was  it  that  a  writ  of  error 
would  not  lie  in  that  country  to  a.  decision  of  the  Court  of 
King's  Bench  in  a  case  of  mandamus  ?  It  was  because  the 
decision  was  not  regarded  in  the  nature  of  a  judgment,  but 
was  altogether  summary  in  its  character.  But  after  the 
statute  of  Anne,  it  was  otherwise.  It  then  assumed  the 
nature  of  an  action  at  common  law;  the  return  was  then 
traversable,  and  the  issue  was  formally  presented  on  the 
record,  and  after  that  it  was  held  that  a  writ  of  error  would 
lie,  notwithstanding  the  statute  of  Anno  contained  no  pro- 
vision for  such  writ.  The  power,  however,  of  this  Court 
to  issue  a  writ  of  error  in  such  a  case,  is  derived  from  our 
statute  defining  the  jurisdiction  of  the  Superior  Court  and 
the  constitutional  provision  on  the  subject.  Rev.  Code,  317, 
and  the  1th  sect,  of  the  6th  art.  of  the  Constitution.  Nor  is 
this  provision  of  the  Constitution  to  be  held  inapplicable 
to  the  present  case,  because  this  proceeding  and  the  deci- 
sion in  it  does  not  assume  the  precise  form  and  technical 
signification  of  a  judgment  at  common  law.     Because  this 


UNION  CHURCH  v.  SANDERS.  113 

Court  has  exercised  the  power  in  question  in  a  case  of  sum- 
mary proceeding  under  a  statute  contrary  to  the  due  course 
of  the  common  law;  for  it  has  been  adjudged  to  lie  from 
this  Court  to  the  Superior  Court  in  a  case  of  divorce.  Jeans 
v.  Jeans,  3  Harr.  136.  And  the  same  principle  has  been 
ruled  and  recognized  in  other  States.  2  Mass.  440;  15 
Pick.  234.  In  each  of  these  cases  the  Court  held  that,  if 
they  could  not  render  the  proper  judgment  or  order  in  the 
premises,  because  of  the  discretionary  power  vested  in  the 
Court  below  for  that  purpose,  they  would  treat  the  writ  of 
error  as  a  writ  of  certiorari,  and  in  that  character  correct  or 
quash  the  error,  though  it  could  not  render  the  proper 
judgment,  or  enter  the  proper  order  or  decision  in  the  par- 
ticular instance.  Besides,  all  the  judicial  power  of  the 
State  is  by  the  Constitution  vested  in  this  Court,  except 
so  much  thereof  as  is  vested  in  the  courts  of  subordinate 
jurisdiction. 

D.  M.  Bates  replied :  In  what  do  we  agree,  and  in  what 
differ  ?  In  the  first  place  it  is  admitted,  on  the  other  side, 
that  a  writ  of  error  would  not  lie  at  common  law  in  Eng- 
land to  a  decision  granting  or  refusing  a  mandamus ;  and 
in  the  next  place  it  is  conceded  that  the  writ  there  exists 
by  virtue  of  the  statute ;  and  as  it  has  been  decided  by  our 
courts  that  the  statute  of  Anne  is  not  in  force  in  this  State, 
the  question  then  presented  is,  does  the  writ  lie  in  this 
State  to  the  decision  of  the  Superior  Court  granting  or  re- 
fusing a  peremptory  mandamus?  We  contend  that  it  does 
not,  because  we  insist  that  it  is  a  mere  discretionary  power 
in  the  Court  below  to  grant  or  refuse  the  mandamus,  as 
may  seem  just  and  proper  under  the  circumstances  pre- 
sented, and  not  a  writ  of  right,  and  exists  here  as  it  existed 
in  England  prior  to  the  statute,  and  is  not  changed  or 
altered  by  the  Constitution  and  laws  of  our  own  State. 

In  this  instance  the  case  is  brought  before  this  Court  on 
a  mere  affidavit  filed  below,  which,  to  say  the  least  of  it,  is 
unusual  and  extraordinary  in  this  Court.  Again,  the  deci- 
sion below  is  not  only  not  a  judgment,  technically  speaking, 


114     COURT  OF  ERRORS  AND  APPEALS. 

but  it  is  not  in  the  nature  of,  nor  has  it  even  the  effect  of, 
a  judgment.  The  only  effect  of  the  mandamus  in  a  case 
like  this  is  to  place  a  party  out  of  possession  of  his  office, 
in  possession  as  lie  was  before  he  was  ejected  or  excluded 
from  it,  subject  to  the  decision  upon  the  question  as  to  his 
rigid  to  it,  to  be  determined  on  a  quo  warranto;  and,  unlike 
a  judgment  in  its  practical  effect,  concludes  nothing  as  to 
the  question  of  right  between  the  parties ;  in  which  re- 
spect it  differs  materially  from  the  case  of  Jeans  v.  Jeans,  3 
JIarr.  136,  cited  on  the  other  side,  for  the  decision  in  the 
proceeding  for  a  divorce,  is  final  and  conclusive  as  to  the 
marital  rights  and  relation  of  the  parties. 

This  Court  derives  its  judicial  power  from  the  same  act 
of  Assembly  which  defines  the  jurisdiction  of  the  Superior 
Court,  and  which  vests  in  that  tribunal  the  general  powers 
of  the  Court  of  King's  Bench  in  England;  and,  conse- 
quently, the  writ  of  mandamus  is  here  as  there,  at  common 
law,  merely  a  discretionary  power.  The  argument  founded 
on  the  term  "  proceedings,"  occurring  in  the  clause  referred 
to  in  the  Constitution,  proves  too  much,  for  the -construc- 
tion given  to  it  would  make  this  Court  a  court  of  general 
review  of  all  proceedings,  even  to  matters  of  practice  on 
affidavits  and  otherwise  in  the  Superior  Court,  which  re- 
duces it  to  an  absurdity. 

The  Court  held  that  the  writ  of  error  would  lie  in  the 
case,  and  refused  the  motion  to  quash  it. 

Johns,  Chancellor :  The  Court  has  come  to  this  conclusion 
upon  what  it  considers  as  a  reasonable  construction  of  the 
clause  in  the  seventh  section  of  the  sixth  article  of  the  Con- 
stitution, which  provides  that  this  Court  "shall  have  juris- 
diction to  issue  writs  of  error  to  the  Superior  Court,  and 
to  determine  finally  all  matters  in  error  in  the  judgments 
and  proceedings  of  said  Superior  Court,"  and  which,  for 
this  purpose,  places  tin'  judgments  and  proceedings  of  that 
Court  upon  original  and  on  other  than  the  common  law 
grounds,  and  extends  the  jurisdiction  of  this  Court  by  writ 


UNION  CHURCH  v.  SANDERS.  115 

of  error  to  judgments  or  decisions  in  any  proceedings  in 
the  Superior  Court  of  a  final  character. 

The  argument  of  the  case  then  proceeded  on  the  writ  of 
error  and  the  record  from  below. 

William  H.  Rogers,  for  plaintiff  in  error :  The  Court  will 
perceive  that  it  is  alleged  in  the  affidavit  that  Sanders  be- 
came an  elder  minister  in  the  church  in  question,  and  that 
the  allegation  is  positively  and  distinctly  denied  in  the  an- 
swer to  it ;  and  this  brings  me  to  the  first  proposition  which 
I  desire  to  present,  for  it  is  a  fundamental  rule  in  mandamus 
that  the  party  must  show  a  clear,  legal  right,  to  entitle  him 
to  the  remedy  which  he  seeks,  and  he  cannot  set  up  a 
claim  on  the  grtfund  of  usage  in  diametrical  opposition  to 
the  plain  fundamental  articles  of  the  incorporation.  There 
was  a  Book  of  Discipline  adopted  in  1813,  under  which  the 
plaintiff  below  asserts  his  claim  in  the  present  instance, 
but  that  was  framed  and  instituted  for  the  spiritual  govern- 
ment of  the  church,  and  had  no  relation  to  the  temporal 
concerns  of  the  corporation  under  the  charter.  The  claim 
and  title  of  the  plaintiff  which  he  sets  up  here  grows  en- 
tirely out  of  an  assumption  of  authority  by  the  Yearly 
Conference,  which,  whatever  may  have  been  its  spiritual 
powers,  could  confer  no  right  or  title  to  any  office  under 
the  charter  of  the  incorporation,  and  which  Conference 
had  in  itself  no  legal  connection  with  the  corporation. 
The  plaintiff  below,  it  will  be  observed,  alleges  it  to  be  his 
right  and  duty,  as  elder  minister,  to  preach  to  and  admin- 
ister the  ordinances  of  the  congregation,  and  to  exercise 
the  pastoral  charge  over  it,  by  the  usage  of  this  Conference; 
but  we  deny  that  any  such  usage  was  ever  held  to  be  the 
foundation  of  any  legal 'right  whatever,  or  that  any  such 
usage  could  spring  up  between  two  corporations,  or  be- 
tween a  corporation  and  an  utterly  irresponsible  or  self- 
constituted  body  of  men,  and  that,  too,  in  direct  opposition 
to  the  fundamental  laws  of  the  incorporation.  The  affidavit 
states   that  Barney,  residing   in  New  York,  assumed   the 


116  COURT  OF  ERRORS  AND  APPEALS. 

management  of  the  northern,  while  the  southern  portion 
of  the  society,  in  Wilmington,  fell  under  the  supervision 
of  Sanders,  as  elder  minister  therein.  And  here  we  would 
ask,  when  and  where  can  a  man  acquire  a  legal  right  to 
preach  ?  Is  it  anything  more  than  a  claim — a  spiritual 
claim — to  be  a  teacher  of  the  word  of  God  ?  And  can  it 
become  the  subject  of  a  legal  right  ?  But  even  the  spiritual 
right  of  Sanders  to  preach  in  this  church  is  denied  in  the 
answer;  and  when  you  find  in  their  articles  of  incorpora- 
tion that  no  person  is  to  exercise  the  office  of  a  teacher  or 
preacher  in  their  church  without  the  consent  of  a  majority 
of  the  trustees  and  the  congregation,  it  is  a  law  of  the  cor- 
poration, as  much  so  as  if  it  were  incorporated  as  one  of 
the  fundamental  articles  in  the  charter.  Conceding  that 
the  congregation  for  a  time  admitted  the  authority  and 
supervision  of  the  Yearly  Conference,  it  was  in  spiritual 
matters  merely,  and  was  soon  thrown  off,  and  their  powers 
under  the  charter  and  their  articles  of  association  were 
resumed  by  them.  The  leading  feature  and  fundamental 
principle  of  the  organization  is  the  right  to  appoint  its  own 
ministers.  Miller  v.  Gable,  2  Denio's  Rep.  492;  Stebbins  v. 
Gcnning,  10  Pick.  191 ;  16  Ohio  Rep.  583 ;  3  Paige's  Rep. 
296. 

The  Court  below  erred  in  granting  a  reargument  of  the 
case  after  a  decision  refusing  the  mandamus ;  for,  having, 
at  the  December  Term,  1852,  discharged  the  rule,  and  re- 
fused  the  mandamus,  the  decision  was  final  and  conclusive, 
and  there  was  no  longer  any  case  before  the  Court  for  re- 
argument  or  reconsideration.  Had  the  decision  been  other- 
wise, the  Court  might  have  arrested  its  own  proceeding 
and  corrected  its  own  error,  if  convinced  of  it.  But  when 
the  writ  was  refused  and  the  rule  was  discharged,  the  case 
was  dismissed,  and  the  parties  were  out  of  court.  The 
Court  below  also  erred  in  refusing  to  allow  the  return  to 
be  amended  on  the  application  made  for  that  purpose  by 
the  plaintiff  in  error,  which  is  a  good  ground  of  exception 
in  this  Court  under  the  provisions  of  the  statute.  Rev. 
Codi ,  407. 


UNION  CHUECH  v.  SANDERS.  117 

But  I  come  now  to  another  and  the  main  ground  of  error 
and  exception  in  this  case.  It  will  be  seen,  from  the  affi- 
davit, that  the  claim  set  forth  by  the  plaintiff  below  is  in 
no  manner  connected  with  any  civil  office,  or  any  office  of 
a  temporal  character  whatever,  and  has  no  fees  or  emolu- 
ments attached  to  it;  on  the  contrary,  it  is  nothing  more 
nor  less  in  a  word  than  an  application  to  the  judicial  tri- 
bunals of  the  State  to  enforce  a  preadier  upon  a  congrega- 
tion whom  they  have  rejected,  and  whom  they  are  no  longer 
willing  to  admit  to  the  pulpit  of  their  church.  This  has 
never  been  done  either  in  this  country  or  in  England. 
The  King  v.  The  Bishop  of  London,  1  Wil.  11 ;  Rex  v.  The 
Bishop  of  Chester,  1  Wil.  206 ;  Rex  v.  Blooer,  2  Burr.  1043 ; 
Runkle  v.  Winemiller,  4  Harr.  and  McHenry's  Rep.  429 ;  The 
King  v.  The  Churchivardens  of  Croyden,  5  T.  R.  713.  In 
the  case  of  Runkle  v.  Winemiller,  the  minister  was  entitled 
to  a  dwelling-house  rent  free,  and  certain  privileges  of  fire- 
wood on  an  adjoining  estate,  in  connection  with  his  pastor- 
ship ;  and  it  was  held  in  that  case  that,  unless  the  office 
of  the  minister  was  endowed,  a  writ  of  mandamus  would 
not  lie  to  restore  him  to  his  office  if  he  was  excluded  from 
it.  For  it  is  only  in  virtue  of  such  endowment,  and  to 
restore  the  party  to  the  pecuniary  benefit  of  which  he  has 
been  deprived,  that  the  Court  can  interpose  by  mandamus 
to  restore  him  to  his  office  of  minister.  There  being,  how- 
ever, no  temporal  right  or  advantages,  pecuniary  benefits, 
or  emoluments  connected  with  or  attached  to  the  office  of 
elder  minister  in  this  church,  but  the  same  being  of  a 
purely  spiritual  and  moral  character,  and  pertaining  solely 
to  the  religious  instruction  and  improvement  of  the  mind 
and  conscience  of  the  members  of  the  congregation,  the 
civil  power  has  nothing  to  do  with  the  restoration  of  any 
teacher  or  preacher  to  such  a  post  when  he  has  once  lost 
it.  The  Constitution  of  the  State  very  wisely  provides 
that  no  one  shall  or  ought  to  be  compelled  to  contribute  to 
the  maintenance  of  any  ministry  against  his  free  will  and 
accord ;  and  that  no  power  shall,  or  ought  to  be  vested  in  or 
assumed  by  any  magistrate,  that  shall  in  any  case  interfere 


118  COURT  OF  ERRORS  AND  APPEALS. 

with,  or  in  any  manner  control  the  rights  of  conscience,  in 
the  tree  exercise  of  religious  worship ;  and  the  articles  of 
association  of  th'is  church  assert  the  same  principles  of  tole- 
ration and  freedom  to  worship  God.  It  is  also  a  well-set- 
tled principle  of  law,  applicable  to  this  writ,  that  to  entitle 
a  party  to  a  mandamus,  it  must  appear  that  he  has  a  legal 
right  to  the  relief  which  he  seeks,  and  that  he  has  no  spe- 
cific legal  remedy  otherwise  to  obtain  it;  and  a  mandamus 
will  not  issue  to  a  party  incapable  of  obeying  or  complying 
with  it,  as  would  be  the  case  in  the  present  instance  were 
the  writ  to  be  issued.  12  Barb.  Rep.  217;  15  Barb.  Rep. 
617. 

I).  M.  Bates,  for  defendant  in  error :  In  the  year  1813 
certain  free  colored  persons,  in  Wilmington,  organized 
themselves  into  a  religious  society,  and  became  incor- 
porated as  such  under  our  act  of  Assembly,  and  pur- 
chased a  house  and  lot  in  that  city  to  and  for  the  use 
of  their  society  or  congregation,  pursuant  to  the  pro- 
visions of  the  law ;  not  in  any  sense  as  private  property, 
but  for  public  worship,  according  to  such  form  as  should 
be  thereafter  prescribed  under  their  form  of  church  go- 
vernment. I  am  willing  to  take  as  the  fundamental  law  of 
this  corporation  the  articles  of  association  and  the  charter 
of  the  corporation.  The  second  of  these  articles  devotes 
this  property  of  the  corporation  to  the  use  of  the  teachers 
and  preachers  duly  ordained,  according  to  the  discipline 
of  the  congregation  or  denomination. 

The  first  thing  to  be  considered  is  the  title  of  Ellis  San- 
ders to  the  office  of  elder  minister  in  this  society.  This 
title  rests  on  no  such  ground  as  it  has  been  placed  on  by 
the  other  side;  that  is  to  say,  the  appointment  of  the 
Yearly  Conference,  but  on  the  election  by  this  society,  in 
1840,  by  the  choice  of  the  congregation,  or  body,  of  Ellis 
Sanders  to  the  ofHce  of  elder  minister,  and  his  ordination 
as  such  according  to  the  discipline  of  this  body.  The 
Yearly  <  Conference  nominates,  but  does  not  appoint,  accord- 
ing to  the  discipline,  an  elder  minister,  and  if  he  is  there- 


UNION  CHURCH  v.  SANDERS.  119 

upon  presented  to  the  congregation,  and  duly  inducted 
into  and  ordained  as  an  elder  minister  in  the  society,  ac- 
cording to  the  forms  and  in  the  mode  prescribed  by  the 
discipline  of  the  body,  his  title  to  the  office  is  complete. 
And  what  does  the  answer  here  say  ?  It  denies  simply 
that  he  is  an  elder  minister  in  the  Union  Church,  in  Wil- 
mington, without  setting  forth  any  facts,  and  it  is  there- 
fore in  this  particular  insufficient ;  for  it  states  a  legal  con- 
clusion merely,  without  traversing  or  denying  the  facts  set 
forth  on  this  point  in  the  affidavit.  The  Court,  and  not  the 
respondents,  are  to  determine  this  legal  conclusion;  and  to 
do  this  the  Court  must  have  the  facts  to  warrant  the  con- 
clusion, and  it  was  incumbent  upon  the  other  side,  there- 
fore, to  meet  our  specific  allegations  with  specific  denials. 
Wile,  on  Corp.  14,  Law  Libr.  220 ;  Any.  and  Ames  on  Corp. 
669;  Rex  v.  The  Mayor  of  Abingto?i,  2  Salk.  432;  Hex  v. 
TIte  Mayor  of  York,  5  T.  R.  66.  " 

I  shall  assume  then,  taking  the  record  as  it  stands,  and 
the  insufficiency  of  the  answer  on  this  point,  that  Ellis 
Sanders  was  an  elder  minister  of  the  Union  Church  of 
Africans  in  Wilmington,  and  I  shall  proceed  next  to  in- 
quire what  were  the  functions  of  an  elder  minister  accord- 
ing to  the  discipline  of  the  body.  The  difference  between 
a  licensed  preacher  and  a  deacon,  and  an  elder  minister, 
was  this :  that  while  the  two  former  had  a  right  to  preach 
to  only  such  as  were  willing  to  hear  them,  the  elder  minis- 
ter stood  in  the  pastoral  relation  to  the  congregation,  or 
society,  and  acquired  the  pastoral  office  over  it  by  virtue 
of  his  induction  and  ordination,  and  his  right  to  preach 
and  to  administer  the  ordinances  of  religion  in  it,  and  to 
do  what  Ellis  Sanders  claimed  the  right  to  do  in  this  ease, 
and  which  pastoral  relation  could  only  be  dissolved  accord- 
ing to  the  discipline  of  the  body;  and  this  brings  me  to 
the  inquiry  whether  the  trustees,  not  the  congregation, 
had  the  right  at  any  time,  at  their  will  and  pleasure,  to 
interrupt  or  arrest  an  elder  minister  in  the  discharge  of 
the  duties  pertaining  to  the  pastoral  relation.  The  sixth 
article  of  association  prescribes  that  no  person  shall  preach 


120     COURT  OF  ERRORS  AND  APPEALS. 

in  the  church  without  the  consent  of  a  majority  of  the 
trustees  and  of  the  congregation.  The  second  article  pro- 
vides that  the  trustees  shall  hold  the  church  for  the  use  of 
the  ministers  duly  ordained  in  conformity  with  the  disci- 
pline. Taking  these  two  articles  together,  it  is  manifest 
that  the  sixth  is  not  intended  to  apply  to  elder  ministers, 
but  to  teachers  and  preachers  of  a  different  order  or  de- 
nomination. It  is  not  to  be  supposed  that  an  elder  minis- 
tor,  after  being  duly  presented,  inducted,  and  ordained  in 
office  as  a  preacher,  with  the  consent  of  the  congregation, 
according  to  all  the  formalities  of  the  discipline,  is  -to  be 
interrupted  in  the  exercise  of  its  functions  at  the  will  and 
pleasure  of  the  trustees  and  congregation. 

I  come  now  to  the  question  of  jurisdiction,  and  on  this 
point  I  take  the  distinction  to  be  obvious.  If  Ellis  San- 
ders had  merely  been  removed  by  the  Yearly  Conference, 
or  an  ecclesiastical  judicatory,  from  his  office  of  preacher, 
or  had  been  deprived  merely  of  his  right  to  preach,  he 
would  not  be  entitled  to  the  remedy  he  seeks  in  this  in- 
stance;  because  that  would  be  merely  a  spiritual  office, 
and  it  would  be  calling  upon  this  Court  to  review  the  de- 
cision of  an  ecclesiastical  body.  But  where  the  ministerial 
function  draws  after  it  the  right  to  use  a  church,  or  pulpit, 
or  place,  as  in  this  instance,  it  is  a  civil  right,  and  the  writ 
of  mandamus  will  lie.  Rex  v.  Barker,  3  Burr,  1265;  3  Blacks. 
Com m.  110;  Marberrg  v.  Madison,  1  Cond.  Rep.  278 ;  Ang. 
and  Ames  on  Corp.  633;  State  v.  Wil.  Bridge  Co.,  3  llarr. 
Rep.  314;    People  v.  Steel,  2  Barb.  Rep.  416. 

In  this  case  the  right  of  Ellis  Zanders,  as  an  elder  min- 
ister, to  occupy  and  preach  in  the  pulpit,  was  a  corporate 
and  civil  right ;  and  wherever  the  function  of  the  office 
draws  with  it  the  right  to  use  any  such  property,  mandamus 
will  lie 

In  one  case  it  was  held  that  the  writ  would  lie  although 
there  were  no  tees  or  emoluments  attached  to  the  office. 
Fuller  v.  The  Plainjield  School,  6  Conn.  Rep.  533;  Ang.  and 
Aim*  on  ('<>rp.  643. 

As  to  the  application  below  for  amendment  of  the  re- 


UNION  CHURCH  v.  SANDERS.  121 

turn  and  answer,  I  have  to  say  that  all  such  applications 
are  addressed  to  the  discretion  of  the  Court  below,  and 
under  the  act  for  amendment  of  pleadings,  this  Court  can 
only  sit  in  review  of  that  discretion ;  and  to  enable  this 
Court  to  do  so  intelligibly,  and  to  admit  the  amendment, 
there  should  have  been  some  specific  amendment  proposed 
below,  which  was  not  done,  and  this  Court  consequently 
can  order  no  amendment  in  the  case. 

As  to  the  other  exception,  taken  on  the  ground  that, 
after  the  Court  below  had  discharged  the  rule,  it  reopened 
the  case,  and  ordered  it  to  be  reargued  before  them,  it  is 
not  a  matter  of  error  to  be  taken  advantage  of  in  this 
Court,  as  it  was  entirely  within  the  discretion  of  the  Court 
below.  The  record,  though  the  rule  had  been  discharged, 
was  still  before  them,  and  subject  to  their  order  and  dis- 
cretion.    18  C.  L.  Reps.  183;   1  Tidd's  Prac.  505. 

Wales,  in  reply  :  In  all  cases  whatsoever,  the  plaintiff,  in 
order  to  entitle  himself  to  a  writ  of  mandamus,  must  satis- 
factorily show  a  clear  and  unquestionable  legal  right  to 
the  .interposition  of  the  Court,  and  this  must  be  done  by 
other  proof  than  his  own  affidavit.  If  the  plaintiff  in  this 
case  is  an  elder  minister  in  this  body,  and  has  certain  func- 
tions, this  must  be  made  appear  by  other  proof  than  his 
own  affidavit,  as  by  the  certificate  of  his  appointment,  or 
other  legal  evidence  of  it,  and  by  a  properly  authenticated 
copy  of  the  charter  of  the  society,  and  by  other  affidavits 
than  his  own  as  to  the  articles  and  discipline  of  the  body 
prescribing  his  duties  and  functions.     Tapp.  on  Maud.  342. 

The  discipline  of  a  Church  is  no  usage  in  contemplation 
of  law,  and,  if  it  were,  there  is  no  usage  or  discipline 
proved  in  this  case. 

In  the  complaint  or  affidavit  there  is  a  reference  not 
only  to  the  act.  of  incorporation  but  also  to  the  articles  of 
association;  the  sixth  article  of  which  is  as  follows:  u  No 
minister  or  teacher  shall  be  privileged  to  preach  or  exhort 
in  the  Union  Church,  except  with  the  consent  of  the  trus- 
tees ami  a  majority  of  the  congregation."     No  one  can  fail 

9 


122  COURT  OF  ERRORS  AND  APPEALS. 

to  perceive  that  this  was  intended  to  be  an  independent 
church.  The  Book  of  Discipline  shows  that  this  society 
was  originally  subject  to  tbe  government  of  the  Methodist 
Episcopal  Church,  and  to  its  system  of  bishops  and  itine- 
rancy, and  that  it  afterwards  seceded  from  that  govern- 
ment and  established  an  independent  church,  subject  to 
the  government  and  control  of  the  society  and  congrega- 
tion itself. 

The  plaintiff  does  not  show  how  he  was  debarred  of  the 
rights  and  privileges  which  he  claimed.  He  does  not  say 
in  his  complaint  that  either  the  trustees  or  congregation 
prevented  him  from  preaching  in  the  church,  or  adminis- 
tering the  ordinances  of  religion  therein,  or  in  what  way, 
or  by  what  means  he  was  debarred.  Again,  he  does  not 
say  that  he  has  been  deprived  of  any  office,  ecclesiastical 
or  civil,  but  simply  alleges  that  he  has  been  debarred  of 
the  rights  and  privileges  pertaining  to  it.  He  does  not 
show  or  allege  that  it  was  an  office  having  any  fees  or 
emoluments  attached  to  it. 

In  this  ease  the  Court  below,  instead  of  ordering  a  pe- 
remptory mandamus,  ought  to  have  ordered  a  further  re- 
turn and  answer.     9   Wend.  Reps.  421*. 

A  peremptory  mandamus  cannot  issue  for  any  detect  or 
insufficiency  in  the  return  or  answer.  If  the  return  is  un- 
true in  substance,  an  action  for  false  return  will  lie  upon- it, 
but  it  must  be  held  to  be  an  answer  to  the  rule.  iState  v. 
Wil.  liridije  Co.,  3  Harr.  Hep.  540;  Awjd  and  Ames  on  Corp. 
670. 

But  the  counsel  for  the  defendant  in  error  assumes  an- 
other ground,  that  the  trustees  of  this  society  and  corpora- 
tion hold  this  house,  or  church,  in  trust  for  the  use  of  this 
elder  minister.  If  so,  then  this  is  a  case  of  trust,  and  the 
trustees  are  abusing  their  trust,  and  the  remedy  is  in  chan- 
cery, and  a  writ  of  mandamus  will  not  lie,  for  when  there 
is  any  other  remedy  mandamus  will  not  lie:  Ana.  and  Ames 
>.■/>  C'-rp.  052;  and  the  Court  wil!  not  issue  a  writ  of  manda- 
mus in  a  case  where,  from  the  nature  of  things,  it  cannot 
be  enforced. 


UNION  CHURCH  v.  SANDERS.  123 

The  Court  below  having  discharged  the  rule  and  dis- 
missed the  case,  especially  where  a  term  has  intervened, 
could  not  hear  it  again,  or  order  it  to  be  reargued  before 
them,  because  the  case  was  then  out  of  Court. 

It  must  be  an  office  known  to  the  law  or  judicially 
known  to  the  Court,  or  mandamus  cannot  issue.  Tapp.  on 
Mand.  223. 

The  mere  right  to  preach  is  a  right  conferred  by  ecclesi- 
astical authority,  and  is  therefore  an  ecclesiastical  right 
merely,  and  if  the  preacher  is  deprived  of  this  right  by  the 
action  of  the  ecclesiastical  body  there  is  no  civil  right  in- 
vaded, unless  there  be  fees,  or  some  temporal  emolument 
attached  to  the  right,  which  is  lost  by  the  invasion  of  it ; 
and  therefore  the  civil  tribunals  cannot  and  will  not  take 
cognizance  of  the  wrong  complained  of. 

Johns,  Chancellor:  The  preceding  statement  of  the  case, 
exhibited  on  the  record  certified  and  sent  up,  presents  the 
questions  which  require  our  consideration  and  decision. 

The  first  and  most  important  is  that  of  jurisdiction.  For 
the  purpose  of  ascertaining  correctly  whether  the  Superior 
Court  had  authority  to  award  the  writ  of  peremptory  man- 
damus, it  is  necessary  to  examine,  and  understand  the  cha- 
racter of  the  injury  complained  of  by  the  petitioner,  and 
the  remedy  which  he  has  sought  to  obtain.  If  no  legal 
right  has  been  violated,  there  can  be  no  application  of  a 
legal  remedy.  The  writ  of  mandamus  is  a  legal  remedy  for 
a  legal  right.  The  petitioner  states  the  injury  to  be  the 
refusal  of  the  trustees  of  the  Union  Church  of  Africans  in 
Wilmington  to  admit  him  to  preach  in  the  said  church 
whenever  he  may  see  proper  so  to  do,  and  to  administer 
the  ordinances  and  discipline  thereof,  and  to  exercise  a 
pastoral  charge  over  the  same,  and  asks  the  aid  of  the 
secular  Court  by  writ  of  mandamus.  The  party  thus  seeking 
the  interposition  of  the  civil  power  derives  his  office  of 
elder  minister,  and  his  authority  to  discharge  its  functions, 
exclusively  from  the  Methodist  Church,  and  alleges  that, 
according  to  the  discipline  and  usages  of  said  church,  it  is 


124  COUKT  OF  ERRORS  AND  APPEALS. 

his  duty  and  right  to  preach  in  the  said  Union  Church  in 
Wilmington  whenever  he  may  see  proper  so  to  do,  and  to 
administer  the  ordinances  thereof,  and  to  exercise  a  pas- 
toral charge  over  the  same.  The  right  to  the  office  and  its 
functions  are  both  expressly  stated  to  be  derived  from 
ecclesiastical  authority,  and  cannot,  under  any  aspect,  be 
viewed  as  temporal  rights.  The  petition  does  not  state 
the  loss  of  any  temporal  right,  or  allege  any  loss  of  pro- 
perty consequential  upon  his  being  refused  to  admission 
to  preach  in  said  church,  or  exercise  the  said  spiritual 
functions. 

It  does  not  appear,  from  any  allegation  contained  in  the 
petition,  that  any  temporal  legal  right  has  been  infringed, 
or  that  the  petitioner  has  been  deprived  of  any  ecclesiastical 
or  temporal  office.  The  only  matter  of  complaint  is,  that 
one  of  the  religious  societies,  over  which  his  ecclesiastical 
authority,  derived  from  the  Conference,  existed,  refused 
submission  to  its  exercise.  His  office  and  functions  over 
all  the  other  societies  remains  unaffected ;  and  no  doubt 
the  pecuniary  compensation,  derived  from  a  common  fund 
and  incident  to  the  office,  remains  unimpaired,  for  no  loss 
or  diminution  is  set  forth.  The  present  case,  therefore,  is 
only  an  application  for  admission  to  the  exercise  and  dis- 
charge of  ecclesiastical  rights  and  duties  in  a  particular 
church,  exclusive  of  any  and  all  temporal  emoluments.  It 
can  only  be  regarded  as  asking  the  aid  of  a  secular  Court 
to  enforce  obedience  to  the  authority  of  the  Conference,  a 
body  exercising  ecclesiastical  and  not  a  temporal  power. 
If,  then,  I  am  correct  in  the  view  taken  of  the  case  made 
in  the  petition,  the  Superior  Court  has  no  jurisdiction, 
and  erred  in  awarding  the  writ  of  mandamus. 

But  it  has  been  supposed  that  the  act  of  incorporation, 
in  connection  with  the  second  section  of  the  articles  of  as- 
sociation, sustains  the  jurisdiction  of  the  Court,  and  au- 
thorized the  awarding  of  the  writ.  The  answer  to  this  is, 
that  the  petition,  reciting  and  relying  on  the  second  sec- 
tion of  the  articles  of  association,  made  the  whole  thereof 
a  part  of  the  case,  and  rendered  it  incumbent  on  the  Court 


UNION  CHUECH  v.  SANDERS.  125 

to  consider  and  respect  all  the  sections.  The  return  to  the 
alternative  mandamus  sets  forth  and  relies  upon  the  sixth 
article,  which  excludes  all  ministers  from  admission  to 
preach  in  the  said  "Union  Church,"  unless  with  the  assent 
of  the  trustees  and  a  majority  of  the  corporation;  and 
further  avers,  that  no  such  consent  was  given,  but  refused. 
The  Superior  Court,  in  awarding  the  writ  of  peremptory 
mandamus,  were  probably  influenced1  by  the  English  deci- 
sions, but,  after  a  full  and  thorough  examination  of  them, 
I  have  not  been  able  to  discover  a  single  instance  in  which 
relief  was  granted,  unless  some  legal  or  temporal  right  was 
involved  in  the  case.  It  is  unnecessary  here  to  review 
them ;  but  it  may  be  useful  to  advert  to  an  important  dis- 
tinction, which  cannot  be  disregarded  when  our  attention 
is  directed  to  such  precedents.  I  allude  to  the  judicial 
jurisdiction  in  Governments  having  an  established  church, 
whether  constitutionally  as  a  part  of  the  organic  law,  or 
tolerated  by  law :  in  such  it  may  be  proper  to  regard  the 
person  entitled  to  the  office  as  having  a  legal  right ;  for, 
although  conferred  ecclesiastically,  it  is  held  under  and  by 
virtue  of  constitutional  or  legal  authority.  In  England  the 
Episcopal  Church  is  a  constituent  part  of  the  constitution, 
and  has  a  legal  existence.  The  ecclesiastical  officers  hold 
and  are  legally  seized  of  the  temporalities  of  the  church, 
and  need  no  act  of  incorporation  for  such  purpose.  The 
rector  being  legally  entitled  to  the  church  and  glebe,  when 
deprived  or  dispossessed  may  be  restored  by  a  writ  of 
mandamus,  which  is  a  legal  remedy  for  a  legal  right.  The 
same  jurisdiction  has  been  exercised  under  the  Toleration 
Acts,  by  analogy,  in  favor  of  dissenting  churches  having 
an  endowment  by  deed,  through  the  intervention  of  trus- 
tees :  when  the  ecclesiastical  office  entitled  the  occupant  or 
holder  of  the  office  discharging  the  services  and  duties 
thereof  to  temporal  emoluments,  for  the  purpose  of  pro- 
tecting the  temporal  rights  incident  to  the  office,  the  secu- 
lar courts  granted  the  writ  of  mandamus.  The  decision  in 
the  case  of  Ittx  v.  Barker,  3  Bur.  Rep.  1265,  sustains  the 
view  I  have  taken,  as  appears  from  the  remarks  of  Mr. 


126  COURT  OF  ERRORS  AND  APPEALS. 

Justice  Foster:  "Here  is  a  legal  right.  Their  ministers 
are  tolerated  and  allowed;  their  right  is  .established  as  a 
legal  right,  and  as  much  ■as  any  other  legal  rights." 

In  all  countries  where  the  church  is  established  by  law, 
it  may  be  consistent  with  public  policy  that  it  should  be 
subject  to  civil  jurisdiction;  for,  when  the  law  establishes 
Oi"  tolerates,  a  state  of  dependence  is  the  legitimate  conse- 
quence. In  Scotland  we  lately  had  an  illustration  of  the 
operation  of  this  principle  in  their  system  of  an  Established 
Church.  I  refer  to  the  celebrated  Shathbogre  case,  which 
resulted  in  the  formation  of  the  Free  Church  of  Scotland; 
adopting  as  its  basis  the  voluntary  principle,  for  the  ex- 
press purpose  of  being  emancipated  from  the  control  of 
secular  courts,  derived  from  precedents  consequent  upon 
the  connection  of  Church  and  State. 

But  under  our  Constitution,  which  declares  "  that  no 
power  shall  or  ought  to  be  vested  in  or  assumed  by.  any 
magistrate,  that  shall  in  any  case  interfere  with,  or  in  any 
manner  control,  the  rights  of  conscience  in  the  free  exer- 
cise of  religious  worship,''  it  would  seem  a  reasonable  con- 
clusion that  all  ecclesiastical  offices  and  their  functions 
must  necessarily  be  excluded  from  the  jurisdiction  of  the 
secular  courts. 

Regarding  the  whole  ecclesiastical  system,  under  our 
Constitution,  as  based  upon  the  voluntary  principle,  it  can 
have  neither  legal  capacity  nor  existence,  and  therefore 
incapable,  sui  juris,  of  having  legal  rights  or  temporal  pro- 
perty ;  hence  the  necessity  of  obtaining  acts  of  incorpora- 
tion to  create  a  corporate  body,  or  constituting  by  deed 
trustees  tor  the  purpose  of  acquiring  and  holding  property 
for  the  use  and  benefit  of  churches;  but  the  church,  in 
it >  ecclesiastical  order  of  functions  and  discipline,  remains 
intact,  and  tree  from  the  civil  and  secular  jurisdiction. 

It  appears  that,  in  4  Harris  and  Me  Henry's  Reports,  44S, 
there  is  a  case  in  which  the  secular  court  exercised  juris- 
diction, on  the  ground  that  the  church  was  endowed,  hut 
decreed  that  emoluments  which  depend  on  Voluntary  con- 
tribution   are   not   sufficient   to  warrant  the  court   in  issu- 


UNION  CHURCH  v.  SANDERS.  127 

ing  a  mandamus.  In  1  Term  Rep.  133,  Lectureship  not 
endowed,  mandamus  refused. 

Instances  have  occurred  in  this  country  in  which  the 
trustees  of  Roman  Catholic  churches  have  refused  to  admit 
priests,  although  appointed  and  authorized  by  a  Roman 
Catholic  bishop,  as  was  the  case  in  the  Church  of  St. 
Louis,  at  Buffalo,  and  St.  Mary's  Church  in  Philadelphia, 
and  yet  recourse  was  not  had  to  the  civil  authority ;  nor, 
as  far  as  I  am  informed,  was  any  attempt  made  to  enforce 
the  ecclesiastical  authority  by  the  writ  of  mandamus.  That 
church,  which  in  other  countries  has  so  long  used  the  coer- 
cive action  of  secular  courts,  well  knewT  that  here  it  would 
be  fruitless  and  unavailing.  To  obviate  the  embarrassment 
experienced  from  lay  trustees,  recourse  was  had  to  the 
legislative  power ;  and  in  several  of  the  States  application 
was  made  for  such  acts  of  incorporation  as  would  vest  the 
temporalities  of  the  church  in  the  bishop,  and  thereby 
create  an  ecclesiastical  corporation  solely,  having  succes- 
sion independent  of  the  laity.  Such  was  the  mode  of  relief 
sought  by  the  Roman  Church  in  our  State,  which  was  de- 
feated by  the  passage  of  a  resolution  declaring  them  enti- 
tled (as  they  always  have  been)  to  the  same  rights  and 
privileges  as  all  other  religious  denominations. 

From  the  consideration  I  have  given  the  subject,  it  ap- 
pears to  me  that  the  petitioner  failed  to  bring  his  case 
within  the  jurisdiction  of  the  Superior  Court.  Being  of 
that  opinion,  it  renders  it  unnecessary  for  me  to  advert  to 
the  other  questions  involved  ;  therefore  I  conclude,  the 
judgment  of  the  Superior  Court,  ordering  the  peremptory 
mandamus,  ought  to  be  reversed  and  declared  to  be  of  no 
effect. 

M'dligan,  Justice:  I  concur  in  the  opinion  just  announced 
by  the  Chancellor,  so  far  as  relates  to  what  I  conceive  to 
be  the  main  question  in  the  cause;  namely,  whether  the 
writ  of  mandamus  will  lie  in  any  ease  to  restore  a  minister 
to  his  clerical  rights  and  functions,  where  there  are  no  fees 
or  emoluments  attached  to  his  office? 


128  COURT  OF  ERRORS  AND  APPEALS. 

With  regard  to  the  other  causes  of  error  that  have  been 
assigned,  namely,  the  insufficiency  of  the  return,  and  the 
rehearing  by  the  Court,  after  the  rule  had  been  once  dis- 
charged, I  deem  it  unnecessary  to  consider  them,  as  the 
ground  first  alluded  to  ought,  in  my  judgment,  to  control 
the  decision  of  the  case.  That  is,  that  the  writ  of  man- 
damus can  only  be  resorted  to  for  the  enforcement  of  a 
legal  right,  and  not  for  those  of  a  purely  ecclesiastical  cha- 
racter. So  far  as  I  have  looked  into  the  authorities,  both 
in  England  and  this  country,  they  fully  sustain  this  posi- 
tion ;  and,  according  to  the  affidavit  of  the  relator,  the  pre- 
sent is  precisely  such  a  case.  The  facts  show  that  Ellis 
Sanders,  although  a  duly  constituted  preacher,  appointed 
by  the  Yearly  General  Conference,  and  accepted  by  the 
trustees  and  a  majority  of  the  congregation  of  the  "  Union 
Church  of  Africans,"  under  their  rules  of  discipline,  to 
occupy  their  pulpit,  was  not  entitled  to  receive  any  fixed 
stipend  or  salary  for  his  services.  Beyond  the  voluntary 
contribution  of  the  religious  society  for  which  he  officiated 
as  pastor,  he  was  in  the  receipt  of  no  pay,  emolument,  or 
compensation.  If,  then,  he  was  debarred  from  the  use  of 
any  right  or  privilege,  it  was  simply  of  his  right  as  elder 
minister  to  occupy  the  pulpit  and  preach  to  the  congrega- 
tion constituting  the  "Union  Church  of  Africans,"  and  not 
of  any  legal  or  temporal  rights.  To  restore  him  to  his 
pastoral  functions,  was  the  sole  object  sought  to  be  at- 
tained by  the  application  for  this  writ,  which  unadvisedly 
issued ;  and  I  am  therefore  in  favor,  upon  the  ground  I 
have  stated,  of  reversing  the  judgment  of  the  Court  below. 

Houston,  Just  ire :  Concurring  in  the  general  conclusion, 
already  announced  by  the  Chancellor  and  Judge  Milligan, 
I  will  take  occasion  to  state  at  length,  and  more  fully  per- 
haps than  may  now  be  necessary,  the  grounds  of  my  opinion. 

The  Court  below  a]. pears  to  have  rested  its  decision  of 
the  ease  mainly,  it'  not  exclusively,  on  the  ground  of  the 
insufficiency  of  the  defendant's  return  to  the  alternative 
writ  of  utnndaw us.    But  the  first  question  to  be  considered 


UNION  CHURCH  v.  SANDERS.  129 

is  the  sufficiency  of  the  case  presented  by  the  petitioner  in 
his  affidavit,  to  entitle  him  to  the  redress  which  he  seeks 
through  the  instrumentality  of  this  writ ;  for  if  the  peti- 
tioner had  no  legal  right,  or  in  other  words,  no  right  which 
a  court  of  law  could  recognize  and  enforce,  to  be  admitted 
or  restored  to  the  place  or  office  in  question,  then  no  writ 
of  mandamus  whatever  should  have  been  ordered  in  the 
case ;  and  it  therefore  becomes,  if  such  was  the  case,  wholly 
immaterial  here  to  consider  whether  the  return  was  insuf- 
ficient or  not. 

The  petitioner's  case  as  stated  in  his  application  for  the 
writ  is  to  this  effect :  that  he  is  a  duly  constituted  elder 
minister  in  the  church  in  question,  which  extends,  as  he 
alleges,  into  several  of  the  States  of  the  Union,  and  that  in 
virtue  of  his  office,  as  such  elder  minister,  he  is  the  pastor, 
or  minister  in  charge,  of  a  religious  society,  incorporated 
under  the  general  law  for  such  purposes,  by  the  name  of 
The  Union  Church  of  Africans,  in  Wilmington,  in  this 
State,  and  that  as  such  it  is  his  right  to  preach  in  the  said 
church  whenever  he  may  see  proper  to  do  so,  and  to  ad- 
minister the  ordinances  and  discipline  thereof,  and  to  ex- 
ercise a  pastoral  charge  over  it.  That  the  present  corporate 
trustees  of  the  church  have  forcibly  excluded  him  from  it, 
and  have  debarred  and  prevented  him  from  exercising  the 
rights  and  functions  appertaining  to  his  office ;  and  that, 
having  no  other  legal  remedy  in  the  premises,  he  prays 
the  Court  to  issue  a  writ  of  mandamus  directed  to  the  said 
church,  commanding  them  to  admit  him  to  preach  in  the 
church  whenever  he  may  see  proper  to  do  so,  and  to  exer- 
cise the  rights  before  stated,  or  show  cause  to  the  contrary. 

The  statement  of  facts  contained  in  his  petition  is  full 
and  particular,  and  he  sets  forth  at  much  length  such 
portions  of  the  constitution,  discipline  and  usages  of  the 
church  as  lie  conceives  to  be  necessary  to  establish  the 
official  character  in  which  he  appears  before  the  Court, 
and  the  ecclesiastical  rights  and  privileges  which  he  claims 
to  pertain  to  it.  But  it,  contains  no  allegation,  and  there 
is  no  proof,  that  there  is  any  emolument  or  compensation 


130     COURT  OF  ERRORS  AND  APPEALS. 

of  any  kind  attached  to  the  office  of  elder  minister  or 
preacher  in  charge  of  the  church  in  question,  or  that  there 
is  any  temporal  right  or  benefit,  stipend  or  salary  depen- 
dent upon  or  incident  to  it.  On  the  contrary,  it  conclu- 
sively appears  that  the  claim  and  right  upon  which  he  re- 
lies is  purely  spiritual  and  ecclesiastical  in  its  nature,  and 
that  it  involves  no  legal  or  temporal  right  whatever;  and 
it  is  now  well  settled,  both  in  this  country  and  in  England, 
that  when  such  is  the  case  mandamus  will  not  lie.  It  was 
so  held  in  the  case  of  Hex  v.  Blooer,  2  Burr.  1043.  In  that 
case  the  application  was  to  restore  the  party  to  the  office 
of  curate  of  the  Chapel  of  Calton.  The  Chapel  was  en- 
dowed with  lands,  and  the  curate  of  it  had  a  stipend.  Lord 
Mansfield,  in  deciding  the  case,  remarked :  "  This  is  a 
mere  temporal  question,"  and  afterwards  added:  "A  man- 
damus to  restore  is  the  true  specific  remedy  where  a  person 
is  wrongfully  dispossessed  of  any  office,  or  function  which 
draws  after  it  temporal  rights,  in  all  cases  where  the  esta- 
blished course  has  not  provided  a  specific  remedy,  by  an- 
other form  of  proceeding."  "Here  are  lands,"  he  also 
remarks,  "  annexed  to  this  Chapel,  which  belong  to  the 
chaplain  in  respect  of  his  function  ;"  and  adds,  by  way  of 
conclusion  :  "  Where  there  is  a  temporal  right,  the  Court 
will  assist  by  way  of  mandamus,  because  it  is  a  specific 
remedy."  The  same  principle  was  affirmed  and  the  same 
distinction  recognized  in  the  subsequent  case  of  lit x  v. 
Baker  ct  al.,  3  Burr.  12(55.  The  writ  in  this  case  was  to 
restore  a  Protestant  dissenting  minister,  or  preacher,  to 
the  use  of  the  pulpit  of  a  meeting-house  which  had  been 
deeded  in  trust,  together  with  a  garden,  to  the  use  of  a 
congregation  and  preacher;  and  Lord  Mansfield  held  that 
the  writ  would  li«,  fur  the  same  reason  and  in  the  same 
language  adopted  in  the  decision  before  cited:  "That 
where  there  is  a  temporal  right,  the  Court  will  assist  by 
mandamus."  lie  speaks  of  the  "  endowment  of  the  pastor- 
ship," and  afterwards  adds:  "  Here  is  a  function  with  emo- 
luments and  no  specific  legal  remedy." 

In  the  cases  above  cited,  the  writ  was  granted  on  the 


UNION  CHURCH  v.  SANDERS.  131 

ground  that  there  were  temporal  rights  or  emoluments 
connected  with  the  function  or  office.  I  shall  now  cite  a 
few  cases  in  which  the  writ  was  refused,  because  there 
were  no  such  rights  or  emoluments  appurtenant  to  the 
place. 

The  first  of  these,  to  which  I  shall  refer,  is  the  case  of 
The  King  v.  The  ■Bishop  of  London,  1  Wil.  Ji.  11.  This  was 
an  application  for  a  writ  of  mandamus  to  command  the  de- 
fendant to  grant  a  license  to  the  relator,  to  preach  as  lec- 
turer of  the  parish  of  St.  Ann,  Westminster.  There  were 
no  emoluments  or  stipend  of  any  kind  connected  with  the 
office ;  and,  after  taking  time  to  consider  of  the  case,  the 
Court  discharged  the  rule,  Lee,  Chief  Justice,  observing: 
"  It  appears  that  this  parish  has  no  fixed  stipend  for  a  lec- 
turer, but  merely  depends  upon  the  voluntary  contributions 
of  the  inhabitants ;  nor  does  it  appear  that  there  is  any  cer- 
tain custom  as  to  electing  a  lecturer.  Therefore,  as  there 
is  no  certain  custom,  nor  does  it  appear  that  either  of  these 
persons  (the  claimants  of  the  place)  have  the  demand  of 
one  penny  from  any  parishioner,  or  anybody  whomso- 
ever, but  that  the  contribution  to  a  lecturer  is  merely 
voluntary,  the  question  is  whether  this  Court  will  at  all 
interpose  in  this  matter;  and  we  are  of  the  opinion  there 
is  no  foundation  at  all  in  this  case  to  ground  any  right 
upon."  The  next  is  the  case  of  The  King  v.  The  Church- 
wardens of  Cloyden,  5  T.  li.  713 ;  in  this  instance  the  ap- 
plication was  for  a  writ  to  admit  the  party  to  the  office  of 
vestry  clerk  of  the  parish,  but  there  were  no  fees  or  salary 
annexed  to  it,  and  Lord  Kenyon,  in  discharging  the  rule, 
rests  the  decision  on  this  ground  among  others. 

This  principle  of  law  has  also  been  clearly  recognized 
and  ruled  in  this  country.  The  case  of  Hunkle  v.  Winemil- 
ler,  4  Harr.  and  Me  Henry's  R.  42!*,  is  a  leading  authority 
on  that  point.  There  the  object  of  the  writ  of  mandamus 
was  to  restore  Mr.  Runkle  to  the  place  and  function  of 
minister  of  the  congregation  of  a  certain  church  in  Frede- 
ricktown,  and  to  the  use  of  the  pulpit  thereof,  with  all  the 
privileges  and  advantages  appertaining  to  the  place  and 


132  COURT  OF  ERRORS  AND  APPEALS. 

function.  The  affidavit  alleged  that  he  had  been  duly  in- 
ducted into  the  possession  of  his  function  of  minister  of 
said  church  and  the  emoluments  thereto  belonging,  and 
that  ihose  emoluments  consisted  of  the  enjoyment  of  a  par- 
sonage-house, eighteen  cords  of  wood  annually,  and  an 
annual  salary  of  eighty  pounds  of  current  money.  The 
case  was  sustained  by  as  able  counsel  as  the  bar  of  Mary- 
land has  produced,  Luther  Martin  and  William  Pinckney, 
and  the  Court  held,  after  full  argument,  that  a  writ  of  man- 
damus would  lie.  Chase,  Judge,  in  deciding  it,  remarked : 
"  The  Court  are  of  the  opinion  that  every  endowed  minis- 
ter, of  any  sect  or  denomination  of  Christians,  who  has 
been  wrongfully  dispossessed  of  his  pulpit,  is  entitled  to 
the  writ  of  mandamus  to  be  restored  to  his  function,  and 
the  temporal  rights  with  which  it  is  endowed;"  and  again, 
"  The  office  or  function  of  minister  must  be  endowed,  or  a 
mandamus  to  restore  cannot  be  granted.  Endowment  does 
not  necessarily  mean  that  lands  and  tithes  must  be  annexed 
to  the  living,  in  exclusion  of  any  other  means  of  support; 
but  a  stipend,  rent,  emoluments  and  advantages  of  any 
kind  given  and  secured  to  the  minister  during  the  time  he 
shall  officiate  as  minister,  as  a  compensation  for  his  ser- 
vices,  is  an  endowment;"  "the  right  to  the  function  as 
the  substance,  draws  to  it  the  emoluments  as  appertaining 
to  it;"  and  concludes  with  this  remark:  "Here  there  is  a 
function  with  emoluments,  and  unless  the  Court  interpose 
and  grant  a  mandamus  to  restore  him  to  his  pulpit,  and  the 
use  of  the  church,  he  will  be  without  any  specific  remedy 
to  recover  the  pulpit,  and  without  remedy  to  recover  the 
emoluments  stipulated  to  be  furnished ;  for  the  emolu- 
ments are  annexed  and  appurtenant  to  the  function,  and 
unless  he  is  restored  to  it  he  will  be  without  remedy  to  re- 
ceive them." 

Upon  the  authority  of  these  cases,  and  the  principle 
which  they  have  so  clearly  established  in  regard  to  this 
writ.  T  am  of  the  opinion  that  the  Court  below  erred  in 
entertaining  the  application  of  Ellis  Sanders  for  a  writ  of 
mandamus  in  this  ease.     There  is  no  endowment,  no  emo- 


UNION  CHURCH  v.  SANDERS.  133 

lument  alleged  or  shown  to  be  annexed  to  the  pastoral 
charge  to  which  he  claims  to  be  entitled,  and  from  which 
he  complains  that  he  has  been  and  is  still  excluded  by  the 
trustees ;  and  as  there  is  no  temporal  or  legal  right  shown 
to  be  involved  in  the  matter,  and  as  it  appears  that  the 
only  right  which  he  asserts  in  regard  to  the  office  and 
functions  claimed  by  him  is  merely  an  ecclesiastical  or 
spiritual  right,  it  is  not  a  case  for  the  interposition  or 
within  the  jurisdiction  of  a  court  of  law,  and  consequently 
it  was  not  a  case  in  which  a  writ  of  mandamus  should  have 
issued  below.  For  it  is  not  the  province  of  a  court  of  law 
to  enforce  such  rights.  A  court  of  law  cannot  enforce  a 
merely  moral,  or  a  purely  equitable  right,  much  less  a 
merely  spiritual  or  ecclesiastical  right.  When,  however, 
the  possession  or  enjoyment  of  a  temporal  right,  as  the 
enjoyment  of  an  endowment  or  an  emolument  is  attached 
to  the  ecclesiastical  office  and  its  functions,  and  is  conse- 
quently dependent  upon  the  exercise  and  enjoyment  of  the 
spiritual  right,  the  law,  out  of  the  regard  which  it  enter- 
tains for  the  temporal  right  and  benefit  of  which  it  has 
jurisdiction,  will  interpose  by  mandamus  to  restore  the 
party  wrongfully  excluded  from  his  ecclesiastical  func- 
tions, where  he  has  no  other  specific  legal  remedy  for  the 
temporal  right,  to  prevent  a  failure  of  justice  in  this  re- 
spect, which  would  otherwise  occur. 

I  would  simply  say,  in  addition  to  this,  that  I  do  not 
consider  that  the  fact  that  the  trustees  of  this  church  were 
incorporated  under  the  general  law  to  take  charge  of  the 
temporalities  of  the  church,  affects  this  principle  of  law  as 
applicable  to  the  case.  I  do  not  deem  it  necessary  to  refer 
to  other  questions  which  were  raised  and  discussed  in  the 
argument,  as  the  principal  point  which  I  have  already 
considered  disposes  of  the  whole  case.  I  am  therefore  of 
opinion  that  the  proceedings  of  the  Court  below  in  this 
case  must  be  reversed. 

Harrington,  Ch.  J.,  dissented,  tor  the  reasons  announced 
by  him  in  the  Court  below,  which  were  as  follows: 


134  COURT  OF  ERRORS  AND  APPEALS. 

I  have  no  doubt  of  the  jurisdiction  of  the  Court  to  restore 
by  mandamus  a  minister  illegally  excluded  from  a  pulpit 
which  he  has  the  right  to  occupy.  The  application  of  this 
writ  to  that  extent  was  affirmed  by  Lord  Mansfield,  in  Hex 
v.  Barker,  3  Burr.  1265,  the  principle  of  which  decision  has 
been  since  applied  in  a  multitude  of  cases  in  England  and 
in  the  United  States.  "Where  there  is  a  right  to  execute 
an  office,  perform  a  service,  or  exercise  a  franchise,  more 
especially  if  it  be  in  a  matter  of  public  concern,  or  attended 
with  profit,  and  a  person  is  kept  out  of  possession,  or  dis- 
possessed of  such  right,  and  has  no  other  specific  legal  remedy, 
this  Court  ought  to  assist  by  mandamus,  upon  reasons  of 
justice,  and  upon  reasons  of  public  policy,  to  preserve  peace, 
order,  and  good  government." 

1.  It  is  no  objection  whatever  to  the  exercise  of  this 
jurisdiction  that  the  office  or  right  appertains  to  a  religious 
society,  or  that  the  ascertaining  the  right  of  the  relator  to 
be  restored  involves  an  inquiry  into  church  government  or 
tenets.  If  it  be  necessary,  to  enable  the  Court  to  exercise 
its  jurisdiction  and  administer  that  justice  which  will  other- 
wise tail,  the  Court  will  do  both.  It  will  not  assume  to 
judge  of  the  scriptural  correctness  of  tenets  or  the  propriety 
of  discipline,  but  it  will  inquire  what  they  are,  if  such  in- 
quiry connects  itself  with  the  title  claimed  to  the  office, 
place,  or  right  sought;  and  if  a  minister  duly  authorized, 
according  to  the  constitution  and  discipline  of  a  church,  to 
occupy  its  pulpit  and  teach  its  doctrines,  be  illegally  de- 
prived of  this  right,  or  prevented  from  its  exercise,  that  is 
a  proper  rase  tor  the  writ  of  mandamus  within  the  jurisdic- 
tion of  this  Court  to  prevent  a  failure  of  justice.  The 
People  v.  Steele,  '2  Barbour  R.  402. 

•J.  Tic  mode  of  proceeding  is  by  petition,  rules  and 
answer,  or  return  :  a  preliminary  rule  to  show  cause  is  com- 
mon, but  not  essential.  The  first  writ  of  mandamus  being 
in  the  alternative,  is  equivalent  to  the  rule  to  show  cause, 
and  may  be  issued  in  a  clear  case  presented  by  the  petition. 
The  return  must  be  positive,  pointed,  and  distinct  in  denial 
of  the   facts,  and  sufficient  in   itself,  for  it  cannot   be  tra- 


UNION  CHURCH  v.  SANDERS.  135 

versed.  It  may  not  state  conclusions  of  law,  and,  if  it  set 
up  a  different  constitution,  it  must  still  negative  the  one 
alleged;  and,  when  the  writ  sets  out  the  mode  of  election, 
it  will  not  be  sufficient  for  the  return  to  say  he  was  not 
elected,  or  not  duly  elected,  but  it  must  traverse  some  of 
the  facts  of  the  election  as  alleged.  Wilcoek  on  Corp.  § 
179-80,  Sfc;  Ang.  and  Ames  on  Corp.  669. 

The  important  questions  in  this  case  are,  whether  Ellis 
Sanders  has  been  duly  appointed  and  inducted  as  the  elder 
minister  of  this  church  according  to  its  constitution  and 
discipline?  whether  he  has  the  charge  of  that  church,  and 
the  right  to  occupy  its  pulpit,  to  preach  and  dispense  its 
ordinances  ? 

The  petition  states  such  an  appointment,  induction,  and 
right,  with  the  manner  of  the  appointment,  and  the  facts 
at  large.  It  states  the  association,  in  1813,  of  certain  free 
colored  people  together  as  a  religious  society  or  congrega- 
tion, the  incorporation  of  their  trustees  under  the  general 
law  for  incorporating  religious  societies;  that  the  property 
of  the  corporation  was  held  by  the  trustees  "  in  trust  for 
the  religious  uses  of  the  ministers  and  preachers  of  the 
said  Union  Church,  for  them  and  their  African  brethren 
and  their  descendants  of  the  African  race,  and  also  for  the 
ministers  and  teachers  of  the  African  brethren  duly  licensed 
and  ordained  according  to  the  discipline  adopted  by  tjie 
corporation  ;"  that  the  trustees  with  the  funds  contributed 
by  the  members  purchased  the  lot  and  erected  the  church, 
which  has  always  been  held  "  for  the  use  of  the  members 
and  ministers  of  said  society,  duly  licensed  and  ordained, 
according  to  the  rules  and  discipline  thereof."  The  peti- 
tion then  sets  forth  the  further  organization  of  the  church 
by  the  election  or  appointment  of  officers,  with  their  several 
functions,  according  to  the  discipline,  among  which  were 
certain  officers  called  elder  ministers,  "  who  were  invested 
with  the  general  superintendence  of  all  the  societies  com- 
posing the  African  Union  Church:  and  that  eaeh  elder 
minister  is,  under  the  usage  and  discipline  of  said  church, 
by  virtue  of  his  office,  "the  minister  in  charge  of  any  so- 


136     COURT  OF  ERRORS  AND  APPEALS. 

ciety  where  he  may  be."  It  then  states  the  manner  of 
selecting,  appointing,  and  ordaining  elder  ministers;  the 
membership,  license,  ordination  to  deacon's  office,  nomi- 
nation, trial  sermon,  presentation  and  ordination  as  elder 
minister  of  the  petitioner,  and  his  installation,  together 
with  Isaac  Barney,  "  in  the  charge  of  the  societies  com- 
posing the  said  African  Union  Church;"  and  that  the 
southern  societies,  including  the  original  society  in  Wil- 
mington, fell  under  his  immediate  charge  and  superinten- 
dence as  elder  minister,  and  still  remain  under  his  charge ; 
that,  by  virtue  of  said  office  of  elder  minister,  and  according 
to  the  usages  and  discipline  of  said  church,  it  his  duty  and 
right  to  preach  in  the  said  Union  Church  in  Wilmington 
whenever  he  may  see  proper  so  to  do,  and  to  administer 
the  ordinances  and  discipline  thereof.  He  then  complains 
of  his  exclusion  by  the  present  trustees. 

The  return  traverses  none  of  these  facts  as  facts ;  but, 
after  objecting  to  the  grant  of  a  mandamus,  because  the 
office  of  elder  minister  is  not  an  office  known  to  the  law, 
&c,  denies  generally  that  the  petitioner  is  an  elder  minister 
in  the  said  Union  Church,  or  that  it  his  duty  or  right  to 
preach  in  the  said  Union  Church  whenever  he  may  see 
proper  so  to  do,  or  to  administer  the  ordinances  and  dis- 
cipline thereof,  &c. ;  and  then  sets  out  other  provisions  of 
the  articles  of  association,  averring  that  they  have  not  been 
complied  with. 

By  the  rules  before  stated,  this  return  is  insufficient.  It 
does  not  deny  the  facts  stated  in  the  writ,  and  it  states  a 
mere  conclusion  of  law ;  or,  at  most,  it  states  only  a  dif- 
ferent constitution  without  denying  the  one  set  up  in  the 
petition,  it  oilers  nothing  tangible,  and  denies  nothing 
material,  which  would  furnish  the  relator  with  any  remedy 
by  action,  which  is  his  only  resort,  if  the  return  be  held 
sufficient.  He  cannot  traverse  the  return,  and  the  return 
does  not  deny  the  facts  upon  which  he  rests  his  case.  He 
is  without  remedy,  therefore,  unless  the  respondents  be 
held  to  the  established  rules  in  such  proceedings,  which, 
for  want  of  a  sufficient  answer,  entitle  the  relator  to  a  per- 
emptory mandamus. 


UNION  CHURCH  v.  SANDERS.  137 


3.  On  the  general  merits  of  the  case  growing  out  of  a 
construction  of  the  constitution  and  discipline  of  this  church, 
much  doubt  has  been  thrown  over  my  mind  by  the  second 
argument.  The  respondent's  position  rests  on  the  repeated 
use  of  certain  expressions  in  the  Articles  of  Association  and 
Discipline,  requiring  the  consent  of  the  congregations  to 
the  induction  of  a  preacher,  and  showing  a  fixed  opposition 
to  the  appointment  of  preachers  over  them  by  a  Conference, 
or  any  independent  power.  On  this  ground  they  seceded 
from  the  Methodist  Episcopal  Church,  which  claimed  and 
exercised  this  power  over  them,  as  it  still  does  over  all  its 
pwn  societies.  The  answer  to  this,  given  generally  in  the 
first,  and  more  at  large  in  the  second  argument,  is  this: 
that  the  Conference,  against  whose  power  they  were  then 
contending,  was  a  body  which  was  not  a  part  of  their  own 
church  organization  ;  it  was  a  body  composed  of  white 
ministers,  in  which  they  were  not  represented;  that,  while 
they  threw  off'  its  authority,  they  provided  for  a  similar 
Conference  as  a  part  of  their  own  organization,  composed 
of  their  own  official  members,  but  without  defining  its 
powers;  that,  by  constant  usage  from  the  beginning,  this 
body  nominated  the  elder  ministers;  leaving  it  still  to  the 
congregations  and  ruling  elders,  after  trial,  to  accept  or 
refuse  the  person  nominated;  and  that  the  expressions  so 
often  repeated,  that  no  preacher  should  have  the  right  to 
preach,  except  to  those  who  were  willing  to  hear  him,  have 
reference  to  a  settled  and  recognized  distinction,  always 
existing,  between  licensed  preachers,  deacons,  and  elder 
ministers. 

The  Court  has  always  been  embarrassed  for  a  sensible 
and  consistent  construction  of  the  Articles  of  Association 
and  Discipline  of  this  church  on  the  face  of  thtse.  papers. 
They  said,  on  the  former  argument,  "  that  it  was  difficult 
to  understand,  from  the  Articles  of  Association  and  Book 
of  Discipline,  what  distinct  system  of  church  government 
these  people  proposed  for  themselves;"  but  on  these  papers 
they  were  unable  to  yield  to  the  distinction  contended  for 
between  preachers  of  different  grades,  and  inclined  to  give 

10 


138  COURT  OF  ERRORS  AND  APPEALS. 

force  to  the  exclusion  of  all  preachers,  except  with  the  con- 
tinued consent  of  the  congregations.  The  practical  effect 
of  this  construction  would  be  to  disorganize  the  church  as 
a  system,  and  to  defeat  one  of  the  objects  of  the  association, 
which  was  to  form  a  union  of  churches.  The  system  pro- 
vides for  a  Conference,  for  what  purpose,  if  none  of  its 
acts  have  any  effect  on  the  individual  congregations,  even 
with  their  consent,  unless  by  their  continuous  consent?  It 
may  be  doubted  whether  the  Court  has  heretofore  given 
force  to  extraneous  evidence  in  ascertaining  what  was  their 
constitution  and  discipline.  In  other  cases,  usage  has  been 
resorted  to  as  a  controlling  evidence.  Even  the  corporate 
or  denominational  name,  in  connection  with  the  contempo- 
raneous acts  of  the  corporations,  has  been  held  a  sufficient 
guide  as  to  the  nature  of  the  trust.  Miller  v.  Gable,  2 
Denio  Hep.  548;  The  People  v.  Steele,  2  Barbour's  Rep.  405. 
Here  the  denominational  name  is  "  The  Union  Church  of 
Africans."  Tin;  system  provides  for  an  association  of 
churches,  —  for  an  annual  Conference,  as  a  recognized 
body ;  and  the  constant  usage,  as  alleged,  and  not  denied, 
has  been  to  induct  elder  ministers,  as  the  relator  claims  to 
have  been  inducted,  viz.,  by  nomination  of  the  Conference, 
trial  sermon,  approbation  of  the  ruling  elders  and  congre- 
gation, and  formal  installation,  as  stated  in  the  petition. 
Ellis  Sanders  claims  to  be  the  elder  minister  having 
charge  of  this  congregation,  and  entitled  to  preach  in  this 
church,  not  merely  by  virtue  of  the  Conference  nomina- 
tion, but  by  the  consent  of  the  elders  and  congregation, 
given  in  the  usual  form  after  a  trial  sermon,  which,  he 
alleges,  is  according  to  the  constitution  and  discipline  of 
the  African  Union  Church.  A  construction  establishing 
his  claim  would  seem  to  me  better  calculated  to  carry  out 
the  general  purposes  of  this  church  organization,  taking 
in  view  its  proposed  objects  and  its  usages  hitherto,  though 
upon  the  face  of  the  very  imperfect  and  confused  Articles 
of  Association  and  printed  Hook  of  Discipline  alone,  such 
a  construction  inav  not  lie  sustained. 


SUPERIOR  COURT. 

FALL    SESSIONS, 
1855. 


"William  D.  Records  v.  Benjamin  Melson. 

On  the  trial  of  a  caveat  filed  against  proceedings  to  locate  vacant  land, 
under  a  private  act  of  Assembly,  the  defendant  is  entitled  to  the  open- 
ing and  conclusion  to  the  jury. 

The  survey  and  plot  of  the  land  proposed  to  be  located,  returned  into  the 
Recorder's  office  under  the  provisions  of  the  act,  is  evidence  on  the 
trial  to  explain  the  limits  and  location  of  the  land  alleged  to  be  vacant. 
But  the  receipt  of  the  State  Treasurer,  for  the  caution-money  paid  him 
by  the  defendant,  and  the  patent  of  the  State  for  the  land  obtained 
while  the  caveat  is  still  pending  and  undetermined,  are  not  admissible 
in  evidence. 

The  general  statute  of  1843,  9  vol.  Del.  Laws,  454,  and  Rev.  Code,  3,  4, 
which  provides  that  twenty  year.-'  peaceable  and  uninterrupted  posses- 
sion of  all  vacant  lands,  with  the  exception  of  salt  marshes,  belonging 
to  the  State,  shall  bar  any  claim  of  title  on  the  part  of  the  State  thereto, 
is  not  merely  retroactive  but  is  prospective  also  in  its  operation  and 
etl'ect. 

This  case  came  up  on  a  caveat  entered  by  Records,  the 
plaintiff,  before  the  Recorder  of  Deeds  for  Sussex  County, 
under  the  provisions  of  a  private  act  of  Assembly  author- 
izing Melson,  the  defendant,  to  locate  and  obtain  a  patent 
for  certain  vacant  land  in  Broad  Creek  Hundred;  and  the 
first  question  which  arose  on  the  trial  of  it  was,  which  party 
was  entitled  to  the  opening  and  conclusion  to  the  jury. 

The  Court  held   that  as  the  burden  of  proof  under  the 
issue  joined  rested   upon  Melson,  the  defendant,  to  show 


140  SUPERIOR  COURT. 

that  the  land  in  dispute,  and  which  he  claimed  to  locate 
and  appropriate  to  his  own  use  as  vacant  land,  was  vacant 
land,  and  that  the  title  to  the  same  was  in  the  State  at  the 
time  of  the  passage  of  the  act,  he  was  entitled  to  the  open- 
ing and  conclusion. 

The  counsel  for  the  defendant  then  proceeded  and  offered 
in  evidence  the  survey  and  plot  of  the  land  in  question,  re- 
turned into  the  recorder's  office  under  the  act  authorizing 
the  location  of  it  hy  him.  Also  the  receipt  of  the  State 
Treasurer  to  him  for  $65.53,  together  with  the  patent  of 
the  State  for  the  alleged  vacant  premises,  which  were  ob- 
jected to,  and  were  ruled  out  by  the  Court,  because  no  pay- 
ment should  have  been  made  to  the  State  Treasurer,  and 
no  patent  should  have  issued  for  the  premises,  so  long  as 
the  caveat  was  pending  and  undetermined.  Objection  was 
then  made  to  the  plot  and  survey  of  the  premises  returned 
into  the  recorder's  office,  but  the  Court  held  it  to  be  ad- 
missible in  evidence,  as  essential  to  explain  the  limits  of 
the  land  claimed  by  the  defendant  under  the  act. 

The  defence  then  proceeded  and  proved  that  no  survey, 
or  patent  of  the  State,  or  proprietary  grant,  or  warrant 
could  be  found  to  cover  the  tract  in  controversy,  consisting 
of  three  or  four  acres,  and  insisted  that  it  was  vacant  or 
public  land  at  the  date  of  the  general  act  of  the  Legisla- 
ture, passed  in  1843,  9  vol.  Del.  Lou:*,  454,  and  Rev.  Code, 
3,  for  quieting  the  title  of  persons  who  had  held  continued 
and  peaceable  possession  of  public  lands  in  this  State  for  a 
period  of  twenty  years  prior  to  that  time:  as  the  plaintiff 
and  those  under  whom  he  claimed  had  not  been  in  the 
continual  possession  of  the  premises  for  twenty  years  pre- 
vious to  the  passage  of  that  act. 

On  behalf  of  the  caveator,  it  was  proved  that  there  was 
a  line  bounding  the  tract  in  dispute,  which  Joseph  Melson, 
a  former  claimant  of  the  premises,  had  established  as  a 
division  line  of  his  lands  when  he  conveyed  them  to  his 
two  sons,  John  and  Stephen  Melson;  that  the  deed  to 
Stephen  included  this  tract,  and  that  he  and  those  coming 
into  possession   under  him,  and  from  whom   the  caveator 


HOSEA  v.  KINNEY.  141 

derived  his  title,  had  cut  upon  and  otherwise  used  the  land 
as  their  own,  from  time  to  time,  for  a  period  of  twenty 
years  before  this  case  was  commenced ;  wherefore  it  was 
contended  that  the  act  of  1843  was  designed  to  be  prospec- 
tive, and  not  merely  retroactive  in  its  operation,  at  the 
time  of  its  passage,  and  that  it  was  not  vacant  land  at  that 
time,  nor  liable  to  be  located  as  such.  And  of  this  opinion 
was  the  Court  {Harrington,  Ch.  J.),  which  charged  the  jury, 
that  if  they  were  satisfied,  from  the  evidence,  that  the 
plaintiff  and  those  under  whom  he  claimed  title  to  the  pre- 
mises had  been  in  the  peaceable  and  uninterrupted  posses- 
sion of  the  land,  exercising  acts  of  ownership  over  it  as 
their  own  property  from  time  to  time,  as  often  as  occasion 
required,  for  twenty  years  before  the  trial,  and  had  been 
generally  recognized  and  regarded  by  their  neighbors  as 
the  rightful  owners  of  it  by  reason  of  such  possession  for 
that  length  of  time,  the  effect  as  well  as  the  intent  of  the 
statute  would  be  to  vest  in  the  plaintiff  whatever  right  or 
title  the  State  might  have  had  in  the  land  prior  to  the  pas- 
sage of  it. 

Verdict  for  the  plaintiff. 

W.  Saulsbury,  for  plaintiff. 

C.  S.  Lay  ton,  for  defendant. 


Nancy  T.  and  James  "W.  IIosea,  Administrators  of  John 
Hosea,  deceased,  defendants  below,  appellants,  v.  Joshua 
Kinney,  plaintiff  below,  respondent. 

An  officer,  who  had  received  money  on  an  execution  and  delivered  it  to 
another  person  to  be  paid  to  the  plaintiff  without  his  order,  is  not  a 
competent  witness  to  prove  the  delivery  of  the  money  to  such  person, 
in  an  action  by  the  plaintiff  against  the  latter  for  money  had  and  received 
to  his  use. 

Pronarr  in  assumpsit   by  Kinney,  the  plaintiff  below, 


142  SUPERIOR  COURT. 

for  money  had  and  received  to  and  for  his  use  by  Hosea, 
the  decedent.  Kinney  had  recovered  a  judgment  before 
a  justice  of  the  peace  against  a  third  party,  and  had  sued 
out  an  execution  against  him  and  placed  it  in  the  hands  of 
Mr  Bride,  a  constable,  to  whom  the  money  was  paid  by  the 
defendant  in  the  writ,  and  by  whom  the  execution  was 
returned  satisfied.  The  constable  afterwards  delivered  the 
money  to  Hosea  to  be  paid  to  Kinney,  but  he  neglected  to 
do  it,  and  this  action  was  brought  to  recover  it  from  his 
administrators. 

On  the  trial,  McBride,  the  constable,  was  called  as  a 
witness  to  prove  the  delivery  of  the  money  by  him  to 
Hosea  to  be  paid  to  Kinney,  and  was  objected  to  as  an 
incompetent  witness  for  that  purpose. 

E.  I).  Cullcn,  for  the  defendants  below:  The  witness  re- 
ceived the  money  as  constable  on  the  execution,  and  there- 
upon returned  it  paid  and  satisfied.  His  testimony  is, 
therefore,  to  discharge  him  from  his  liability  to  the  plain- 
tiff below  on  this  return,  if  the  latter  succeeds  in  recovering 
it  from  the  administrators  of  Hosea.  There  was  no  order 
or  request  from  Kinney  to  him  to  pay  the  money  to  Hosea. 
He  is,  consequently,  to  gain  or  lose  by  the  event  of  this 
suit,  and  is  clearly  incompetent.  1  Phil.  Ev.  101;  3  Stark. 
Er.  1730;  Theobald  v.  Taggert,  11  Mod.  261;  3  Phil.  Ev. 
105,  note  89 ;  25  Wend.  420. 

C  S.  Txiyton,  for  plaintiff  below  :  The  witness  is  compe- 
tent, and  the  admissibility  of  such  a  witness  under  similar 
circumstances  has  been  ruled  and  settled  by  our  courts. 
Petfijohnv.  Hudson,  A  Harr.  178;  Johnson  \.  Fawners'  Bank, 
1  Harr.  117;  Bennington  v.  Parkings  Administrator,!  Harr. 
128;  Bailey  x.  Capclle,  1  Harr.  44!);  Clark  v.  Maloneg,  3 
Harr.  68.  Besides,  the  witness  is  not  liable  in  this  ease  to 
Kinney  on  his  return,  if  In-  should  tail  to  recover  the  money 
from  the  administrators  of  Hosea,  because;  as  against  him 
the  action  is  now  barred  bv  the  statute  of  limitations. 


CANNON  v.  WINDSOR.  143 

The  Court  sustained  the  objection,  and  ruled  out  the  tes- 
timony of  the  witness,  on  the  ground  that  he  was  interested 
in  the  event  of  the  suit,  as  the  recovery  of  the  plaintiff 
would  discharge  him  from  his  liability  for  the  money  on 
his  return  to  the  execution.  For,  conceding  the  fact  to  be 
as  had  been  alleged,  that  the  action  against  the  constable 
on  his  return  was  now  barred  by  the  statute  of  limitations, 
it  did  not  remove  his  interest  in  the  event  of  this  suit,  for 
a  recovery  by  the  plaintiff  in  this  action  would  absolutely 
absolve  and  discharge  him  from  any  liability  to  be  sued 
at  all  by  the  plaintiff  on  his  return ;  and  would,  to  say 
the  least  of  it,  afford  him  two  defences,  instead  of  one, 
against  such  action. 

The  case  afterwards  went  to  the  jury,  and  the  defendants 
below  had  a  verdict. 


Isaac  Cannon  v.  John  Windsor. 

The  maxim  of  cicilile.r  mortuus,  on  a  conviction  for  felony,  does  not  ap- 
ply in  this  State.  Even  in  England,  the  disability  to  maintain  a  civil 
action  after  a  conviction  for  treason  or  felony,  attaches  only  to  a  party 
plaintiff,  and  must  either  he  pleaded  in  abatement  or  specially  in  bar  to 
the  action  ;  but  any  subject  of  the  king  there,  convicted  or  attainted  of 
treason  or  felony,  may  be  sued  as  a  party  defendant  in  a  civil  action. 

An  action  of  indebitatus  assumpsit  will  lie  as  between  near  relations,  for 
board  and  maintenance,  on  proof  of  an  express  promise,  or  an  actual 
understanding  between  the  parties  that  the  same  is  to  be  charged  and 
paid  for,  without  a  special  count  on  the  express  promise. 

This  was  an  action  of 'indebitatus  assumpsit  for  the  sup- 
port and  maintenance  of  two  young  children  of  the  de- 
fendant by  the  plaintiff,  from  May,  1850,  until  the  com- 
mencement of  the  action.  The  defendant  stood  in  the 
relation  of  son-in-law  to  the  plaintiff,  whose  daughter  he 
had  married,  and  who  was  the  mother  of  tin-  children    in 


144  SUPERIOR  COURT. 

question.  On  the  death  of  their  mother  by  the  hand  of 
the  defendant,  he  was  arrested  and  committed  to  prison, 
and  was  afterwards  tried  and  convicted,  and  condemned 
to  be  executed  for  the  offence ;  and  he  was  still  in  prison 
under  sentence  of  death  at  the  time  of  this  trial.  On  his 
arrest  his  family  was  broken  up,  and  the  children  were  re- 
moved to  the  house  of  their  grandfather,  the  plaintiff,  where 
they  had  remained  ever  since.  It  was  in  proof  that  he  had 
frequently  sent  in  the  meanwhile  for  persons  residing  in 
the  neighborhood  of  the  plaintiff,  to  inquire  of  them  as  to 
the  health,  condition,  and  welfare  of  the  children,  and  had 
repeatedly  said  to  the  witnesses  that  the  plaintiff  ought  to 
be  compensated  for  his  care  and  expenses  in  maintaining 
and  educating  them,  and  he  must  do  something  to  remu- 
nerate him  for  it,  and  would  send  one  of  his  black  boys  to 
work  for  him,  as  he  was  old  and  unable  to  work  for  him- 
self. 

W.  Saulsbury,  for  the  defendant,  raised  the  objection 
that,  as  the  defendant  was  then  in  prison,  under  sentence 
of  death  for  a  capital  felony,  he  was  civiliter  mortuus,  and 
therefore  could  not  be  civilly  liable,  and  could  not  be  sued 
in  any  civil  action. 

B\j  the  Court:  By  the  common  law  in  England,  a  party 
convicted  or  attainted  of  felony,  forfeits  all  his  goods  and 
chattels,  as  well  as  the  profits  of  his  lands,  to  the  sovereign, 
and  is  thence  incapable  of  maintaining  an  action,  and  is 
regarded  as  civilly  dead,  and  out  of  the  protection  of  the 
law  to  that  extent  at  least;  yet,  when  he  sues  as  a  plaintiff 
even  there,  his  disability  to  do  so  for  this  reason  must 
either  be  pleaded  in  abatement  or  specially  in  bar  to  the 
action.  But  here  there  is  no  such  general  forfeiture  of 
property,  or  the  right  to  maintain  an  action,  on  a  conviction 
for  treason  or  felony,  and  the  maxim  or  principle  of  civiliter 
martinis  cannot  therefore  apply  in  this  State,  even  when  he 
is  a  party  plaintiff.  Hut  every  subject  of  the  king  there, 
from  the  queen  down   (for  she   is  a  person  sole  by  the  com- 


CANNON  v.  WINDSOR  145 

mon  law),  though  he  be  convicted  or  attainted  of  treason 
or  felony,  or  be  outlawed,  may  be  sued  in  a  civil  action; 
since  the  disability  referred  to  attaches  only  to  a  plaintiff 
there,  and  not  to  a  defendant.  But,  if  the  law  were  other- 
wise, there  is  no  issue  on  the  record  in  this  case  to  raise 
the  question  or  to  sustain  the  objection,  for  the  counsel  has 
entered  the  usual  appearance  for  the  defendant,  and  pleaded 
merely  the  pleas  generally  filed  in  an  action  of  assumpsit. 

On  the  conclusion  of  the  plaintiff's  testimony  the  de- 
fendant's counsel  submitted  a  motion  for  a  nonsuit,  on  the 
ground  of  the  near  relationship  of  the  parties,  and  that 
indebitatus  assumpsit  would  not  lie  in  such  a  case  without 
proof  of  an  express  promise  to  pay,  and  a  special  count  on 
the  express  promise,  even  if  such  a  promise  had  been 
proved.  Add.  on  Contr.  737 ;  Chit,  on  Contr.  575 ;  Collins  v. 
Mariner's  Administrator,  5  Harr.  290 ;  Caniine  v.  Phillips's 
Administrator,  5  Harr.  428 ;  4  Denio,  46 ;  38  Eng.  C.  L.  R. 
46;  24Eng.  C.  L.  R.  277. 

E.  D.  Cullen,  for  the  plaintiff:  It  should  be  observed,  in 
all  the  cases  cited,  the  Court  left  it  to  the  jury  to  decide 
whether  any  express  engagement  or  promise  to  pay  had 
been  proved  or  not.  But  in  this  case  the  plaintiff  and  de- 
fendant were  no  relations  in  law,  being  only  what  were 
commonly  called,  by  a  singular  misapplication  of  terms, 
father-in-law  and  son-in-law.  Besides,  no  one  could  sup- 
pose nor  would  the  law  presume  that  there  could  have  been 
any  affection,  kindness,  or  courtesy  entertained  or  intended 
by  a  bereaved  father  towards  the  murderer  of  his  daughter. 
Again,  it  was  in  proof  that,  on  this  mournful  occurrence, 
the  family  of  the  defendant  was  entirely  broken  up,  and 
these  little  children  had  no  home  left  to  them,  and  had, 
from  necessity,  not  from  kindness  alone,  to  be  taken  to 
the  house  of  their  grandfather  for  shelter  and  protection ; 
and  no  one  could  imagine  that  this  was  intended  as  a  mere 
gratuity  to  the  defendant,  who  was  far  more  able  than  the 
plaintiff  to  defray  the  expense  of  their  maintenance  and 
education.     A  father,  if  able,  was  obliged  by  law  to  main- 


146  SUPERIOR  COURT. 

tain  his  children,  and  if  he  turned  them  out  of  doors,  and 
any  one  supplied  their  necessities,  the  law  would  imply  a 
promise,  and  compel  him  to  pay  for  such  necessaries. 

The  Court  declined  to  nonsuit  the  plaintiff,  but  left  the 
question  of  fact  as  to  whether  any  express  promise  or  un- 
derstanding had  been  proved,  for  the  consideration  of  the 

Jurv- 

Afterwards,  in  the  argument  of  the  case  before  the  jury, 
the  counsel  for  the  defendant  insisted  that  there  was  no 
proof  of  an  express  or  actual  promise,  or  engagement  on 
his  part,  to  pay  the  plaintiff  for  the  support  of  his  grand- 
children, and  revived  the  questions  raised  by  him  on  the 
motion  for  a  nonsuit,  and  asked  the  Court  so  to  instruct 
the  jury  on  the  authorities  before  cited  by  him.  On  the 
part  of  the  plaintiff  it  was  insisted  that,  if  sufficient  proof 
had  been  made  of  an  express  promise,  the  plaintiff  was 
entitled  to  recover  in  the  present  action,  without  a  special 
count  on  the  express  promise. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  As  argued 
by  the  counsel,  the  real  point  in  dispute  between  them 
was,  that,  as  between  near  relations,  the  plaintiff  could  not 
recover  for  board  and  maintenance  in  an  action  of  assumpsit 
without  proof  of  an  express  or  actual  promise,  and  a  count 
on  a  special  contract  to  pay  for  it;  but  the  Court  had  never 
so  decided.  In  all  the  cases  which  had  arisen  in  this  Court 
of  this  character,  the  declaration  was  in  indebitatus  assumpsit, 
and  the  Court  had  always  left  it  to  the  jury  to  say  on  such 
a  count  whether  there  was  sufficient  evidence  before  them 
of  an  express  promise  or  agreement  between  the  parties  in 
regard  to  the  matter  as  would  entitle  the  plaintiff  to  recover 
upon  the  principle  of  law  which  applied  in  such  cases. 
What  the  law  required  in  such  cases  was  an  actual  promise 
or  understanding  to  pay  for  the  board  and  maintenance, 
since  the  law  would  not  imply  the  promise  as  in  ordinary 
cases,  owing  to  the  near  relationship,  and  tin4  presumption 
in  such  cases  that  no  charge  was  intended,  in  the  absence 


CANNON  v.  WINDSOR.  147 

of  any  express  promise  or  some  actual  understanding  be- 
tween the  parties  in  regard  to  charging  and  paying  for  it. 
This  ruling,  however,  introduced  no  new  principle  of  plead- 
ing in  regard  to  the  action,  or  the  mode  of  declaring  on 
the  promise  required  in  cases  like  the  present.  The  de- 
claration is,  that,  being  indebted  to  the  plaintiff,  the  de- 
fendant promised  to  pay ;  and  the  only  difference  between 
this  and  ordinary  cases  of  indebitatus  assumpsit  consisted 
merely  in  this,  that  a  higher  and  more  positive  degree  of 
proof  is  required  by  law  to  sustain  the  averment  in  this 
instance  than  in  the  others,  where  facts  and  circumstances 
alone  would  afford  sufficient  presumption  to  imply  the 
promise.  The  objection  of  the  defendant  proceeded  on 
the  idea  that,  in  a  case  like  this,  the  contract  was  special, 
and  should  so  be  declared  on ;  but  if  so,  then  every  actual 
promise  to  pay  a  debt  which  the  law  would  imply  a  pro- 
mise to  pay  without  it,  would  become  a  special  contract, 
and  could  no  longer  be  recovered  under  the  common  counts 
in  indebitatus  assumpsit.  Even  where  the  statute  of  frauds 
required  the  contract  to  be  in  writing,  it  was  not  necessary 
to  so  allege  it  in  the  declaration ;  although  if  the  plaintiff 
failed  to  prove  on  the  trial  that  it  was  in  writing,  he  could 
not  recover  upon  it. 

The  Court,  however,  must  say  to  the  jury,  under  the  re- 
lationship proved  between  the  parties,  the  plaintiff  could 
not  recover  in  the  action,  unless  they  were  satisfied  from 
the  evidence  they  had  heard  that  the  defendant  had  ex- 
pressly promised,  or  there  had  been  some  actual  under- 
standing between  them  that  he  was  to  pay  the  defendant 
for  his  care  and  maintenance  of  the  children. 

Verdict  for  the  plaintiff 


148  SUPERIOR  COURT. 


Hknry  F.  Rodney,  Executor  of  Robert  Burton,  deceased, 
v.  Peter  Warrington. 

The  report  of  referees  on  a  rule  of  reference  sustained  by  the  Court,  on 
the  party  consenting,  in  whose  favor  the  report  was  made,  to  enter  a 
credit  upon  it  for  a  payment  proved  to  have  been  made  by  the  other 
party,  but  which  the  referees  had  disallowed. 

Rule  to  set  aside  the  report  of  referees  on  a  rule  of  re- 
ference out  of  Court.  The  evidence  before  the  referees 
was  that  the  parties  had  had  frequent  dealings  prior  to  the 
year  1847,  when  Robert  Burton,  the  deceased,  paid  War- 
rington eighty  dollars  and  gave  him  his  bond  for  nine 
hundred  dollars,  which  was  afterwards  paid  by  him.  It 
was  proved,  however,  that  the  bond  was  for  an  interest  in 
a  schooner  sold  by  Warrington  to  Burton,  and  was  to  have 
no  reference  to  their  other  dealings.  Some  of  the  items  in 
the  account  of  the  plaintiff  were  barred  by  the  statute  of 
limitations,  at  the  time  of  the  institution  of  the  suit  re- 
ferred, and  some  of  the  items  in  his  account  were  disal- 
lowed by  the  referees,  but  whether  for  that  cause  did  not 
appear  to  the  Court.  The  report  was  in  favor  of  the  de- 
fendant in  the  rule  for  #220,  and  the  referees  had  disal- 
lowed to  the  executor  of  Burton  credit  for  the  eighty  dol- 
lars proved  to  have  been  paid  by  him,  under  the  impression 
that  it  had  been  paid  by  Burton  for  the  benefit  of  another, 
and  not  on  his  own  account  to  Warrington.  The  statute 
of  limitations  was  pleaded  in  the  action,  and  it  was  proved 
that  on  the  trial  before  the  referees  the  defendant  insisted 
that  a  large  portion  of  the  account  was  barred  by  the  act, 
and  that  the  account  was  settled  and  discharged  at  the 
time  of  the  payment  of  the  eighty  dollars  and  the  delivery 
of  the  bond  for  $900,  which  was  afterwards  paid;  upon 
which  grounds  it  was  contended  that  the  report  should  be 
set  aside. 

By  the  Court:  We  are  satisfied  that  the  evidence  before 
the  referees  clearly  established  the  payment  of  the  eighty 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     149 

dollars  by  Burton,  the  deceased,  to  Warrington,  the  plain- 
tiff in  the  action  referred,  although  it  is  not  clear  that  there 
was  a  settlement  of  the  accounts  between  them  at  that 
time;  and  the  conclusion  to  which  the  Court  has  come  is 
this, — to  set  aside  the  report,  unless  the  plaintiff  will  now 
consent  to  enter  a  credit  for  that  sum  with  interest  from 
the  date  of  its  payment,  but  if  he  consents  to  do  so,  to  con- 
firm the  report. 

The  plaintiff  consented,  and  after  deducting  the  credit 
the  report  was  affirmed. 

E.  D.  Cullen,  for  plaintiff. 

C.  S.  Layion,  for  defendant. 


The  Delaware  Railroad  Company  v.  Beniah  Tharp. 

The  Delaware  Railroad  Company  was  chartered  in  1836,  with  authority 
to  construct  a  railroad  throughout  the  length  of  the  State,  but  no  com- 
pany was  organized  under  the  charter  at  that  time.  In  1849  the  Legis- 
lature revived  and  amended  the  charter,  with  authority  to  the  company 
to  construct  a  railroad  on  a  reduced  scale,  to  extend  from  Dona  River, 
in  Kent,  to  the  Nanticoke  River,  in  Sussex  County,  under  which  amend- 
ment the  company  was  duly  organized,  and  under  the  charter  as  thus 
amended  the  defendant  subscribed  for  forty  shares  in  the  capital  stock 
of  the  company,  on  which  a  call  of  three  dollars  per  share  was  made  by 
the  directors  of  the  company,  payable  on  the  first  day  of  December, 
1852.  In  185.'5  the  company  applied  to  the  Legislature  for  the  purpose, 
and  the  Legislature  amended  its  charter  so  as  to  authorize  the  abandon- 
ment of  the  terminus  of  the  railroad  at  Dona  River,  and  that  portion 
of  it  projected  from  Dover  to  that  point,  and  to  extend  and  unite  it 
with  the  New  Castle  and  Frenchtown  Railroad  in  New  Castle  County, 
on  which  ground  tin;  defendant  refused  to  pay  for  the  call  or  instalment 
demanded  of  him.  Held  that  this  change  in  the  direction,  location  and 
construction  of  the  road,  authorized  by  the  Legislature,  and  adopted  by 
the  company  subsequent  to  the  subscription  to  its  stock  by  the  defen- 
dant, did  not  absolve  him  from  his  subscription  for  the  stock,  but  that 
he  was  still  bound  to  pay  for  it. 

The  grant  of  an  act  of  incorporation  by  the  State  is  professedly  for  the 
public  good  generally,  and  there  is  an  inherent  right  in  the  Legislature 


150  SUPERIOR  COURT. 

to  amend,  alter  and  change  it  with  the  assent  of  the  corporation,  and 
those  who  become  corporators  in  it  do  so  with  that  contingency,  and 
their  engagements  are  therefore  subject  to  it. 

If  a  subscriber  to  stock  enters  generally  into  a  corporation,  without  spe- 
cific stipulations,  he  is  bound  and  concluded  by  the  action  of  a  majority 
of  the  corporation,  and  if  the  Legislature  amends  and  changes  the  char- 
ter with  the  assent  of  the  company,  he  will  not  be  thereby  discharged 
from  his  liability  for  his  subscription  for  stock  made  previous  to  the 
amendment  and  change  of  the  charter.  But  if  the  subscription  for 
stock  is  of  such  a  character,  and  the  change  in  the  object  of  the  charter 
is  of  such  a  nature  as  to  increase  the  amount  which  he  was  originally 
bound  to  pay  by  virtue  of  his  subscription  to  the  stock,  it  will  absolve 
him  from  his  contract  and  liability  to  pay  for  it. 

There  is  no  substantial  distinction  between  the  terms  subscriber  and  stock- 
holder in  the  Delaware  Railroad  charter,  and  a  subscriber  may  be  sued 
for  arrears  of  subscription  for  stock  due  from  him,  without  proof  that 
certificates  of  stock  have  been  issued  or  tendered  to  him  by  the  com- 
pany. 

Tried  before  Milligan  and  "Wootten,  Justices.  Harring- 
ton, Ch.  J.,  did  not  sit  in  the  case,  as  he  was  at  the  time 
the  president  and  a  stockholder  of  the  company. 

This  was  an  action  of  assumpsit,  brought  by  the  Dela- 
ware Railroad  Company  against  Beniah  Tharp,  to  recover 
an  instalment  of  three  dollars  per  share  on  forty  shares 
subscribed  for  by  him  in  the  capital  stock  of  the  company, 
with  interest  thereon  at  two  per  cent,  per  month  after  the 
expiration  of  thirty  days  from  the  time  the  instalment  be- 
came payable.  Plea,  non  assumpsit,  with  leave  of  counsel 
on  the  other  side  to  give  the  special  matters  of  defence  in 
evidence  under  the  general  issue. 

The  original  charter  of  the  Delaware  Railroad  Company 
was  enacted  by  the  Legislature  in  183(5,  and  authorized 
the  location  and  construction  of  a  railroad  from  any  point 
on  or  near  the  Wilmington  and  Susquehanna  Railroad, 
or  the  New  Castle  and  Frenchtown  Railroad,  to  the  south- 
ern line  of  the  State,  in  a  direction  towards  Cape  Charles, 
or  the  southern  part  of  the  peninsula,  with  lateral  projec- 
tions to  any  other  points  or  places  within  the  limits  of  the 
State.  In  1 S 4 1 »  the  charter  was  re-enacted,  and  amended 
so  as  to  authorize  the  location   and  construction  of  a  rail- 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     151 

road  from  Dona  River,  in  Kent  County,  to  the  N/anticoke 
River  at  or  near  Seaford,  in  Sussex  County,  under  which 
the  company  was  organized,  and  the  defendant  subscribed 
for  the  forty  shares  of  capital  stock  before  mentioned,  and 
was  elected  one  of  the  board  of  directors  of  the  company. 
In  August,  1852,  the  directors,  the  defendant  then  being  a 
member  of  the  board,  made  their  first  call  upon  the  sub- 
scribers to  the  stock  of  the  company,  under  which  the  in- 
stalment in  question  became  payable  on  the  first  day  of 
December  following.  At  the  first  annual  meeting  of  the 
stockholders,  in  January  succeeding,  the  right  of  the  de- 
fendant to  vote  in  the  meeting  was  objected  to  because  of 
the  nonpayment  of  the  instalment  due  from  him,  and  his 
vote  was  rejected,  after  which  he  attended  no  more  meet- 
ings  of  the  company.  By  an  act  of  the  Legislature,  passed 
in  1853,  the  charter  of  the  company  was  again  amended 
with  the  consent  of  the  stockholders,  to  authorize  the  com- 
pany to  extend  and  unite  their,  road  with  the  New  Castle 
and  Frenchtown  Railroad,  on  such  terms  and  conditions 
as  should  be  agreed  upon  between  the  two  companies ;  and 
at  the  same  session  an  act  was  also  passed  to  authorize 
the  New  Castle  and  Frenchtown  Railroad  Company  and 
the  Philadelphia,  Wilmington  and  Baltimore  Railroad 
Company,  or  either  of  them,  to  guarantee  the  bonds  of  the 
Delaware  Railroad  Company  to  such  an  amount  and  on  such 
conditions  as  should  be  agreed  upon,  to  hold  stock  in  the 
latter  company,  and  to  contract  and  agree  for  the  construc- 
tion, equipment,  maintenance  and  operation  of  the  Dela- 
ware Railroad,  on  such  terms  and  conditions  as  sjiould  be 
agreed  upon  by  them,  provided  such  terms  and  conditions 
should  be  approved  at  a  meeting  of  the  stockholders  of  the 
latter  company,  to  be  called  for  that  purpose,  by  a  majority 
of  the  stock  of  said  company  there  represented.  By  virtue 
of  these  two  acts  of  the  Legislature,  the  Delaware  Kail- 
road  Company,  with  the  consent  of  a  majority  of  its  stock- 
holders, abandoned  Dona  River  as  a  terminus  of  their  rail- 
road, and  renounced  the  construction  of  it  between  Dover 
and  that  point,  as  designed  and  contemplated  at  the  time 


152  SUPERIOR  COURT. 

when  the  defendant  subscribed  for  the  forty  shares  in  the 
capital  stock  of  the  company,  and  had  agreed  with  the 
Philadelphia,  Wilmington  and  Baltimore  Railroad  Com- 
pany for  the  extension  and  construction  of  it  to  unite  with 
the  New  Castle  and  Frenchtown  Railroad. 

On  the  part  of  the  defendant  it  was  admitted  by  his 
counsel  that  lie  had  subscribed  for  forty  shares  of  stock  in 
the  Delaware  Railroad  Company  prior  to  the  month  of 
May,  1852,  and,  after  proving  the  organization  of  the  com- 
pany by  the  subscription  of  the  aggregate  amount  of  stock 
required  by  the  charter,  and  the  election  of  the  necessary 
officers  and  the  publication  of  the  call,  including  the  in- 
stalment in  question  demanded  of  the  defendant,  it  was 
admitted  by  the  counsel  for  the  plaintiff  that  all  the  acts 
of  the  Legislature  relative  to  the  company,  passed  since 
1849,  had  been  accepted  by  it,  and  now  constituted  por- 
tions of  its  charter;  and  that,  since  the  defendant  had  sub- 
scribed Tor  his  stock  in  the  company,  the  company  had 
ceased  working  on  that  part  of  the  road  which  extended 
from  Dover  to  Dona  River,  and  were  then  constructing  a 
railroad  from  the  Xew  Castle  and  Frenchtown  Railroad  to 
connect  with  the  Delaware  Railroad  at  Dover,  which  would 
be  much  longer,  and  would  consequently  cost  much  more 
than  the  road  projected  from  the  latter  place  to  Dona 
River.  That  the  company  bad  leased  the  whole  road  to 
the  Philadelphia,  Wilmington  and  Baltimore  Railroad 
Company,  under  an  agreement  of  the  two  companies,  with 
the  consent  of  a  majority  of  the  stockholders  of  the  former 
company,  and  with  the  aid  of  the  latter  company,  it  was 
then  engaged  in  constructing  the  Delaware  Railroad  from 
the  New  Castle  and  Frenchtown  Railroad,  instead  of  Dona 
River,  to  the  Nanticoke  River,  at  or  near  Seaford.  The 
counsel  for  the  plaintiff  then  rested  their  ease. 

('.  S.  Lot/Ion,  for  defendant,  moved  for  a  nonsuit,  on  the 
ground  that  sufficient  evidence  had  not  been  adduced  to 
prove  that  the  defendant  was  a  stockholder  in  the  com- 
pany,  because  there  was  no  proof  that  any  certificate  of 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     153 

stock  was  ever  delivered  or  tendered  to  him  for  a  share  of 
stock  subscribed  for  by  him.  But  this  the  president  and 
directors  of  the  company  were  required  to  do  by  the  seventh 
section  of  the  charter  of  the  company,  which  provided  that 
the  president  and  directors  first  chosen  should  procure 
certificates  of  stock  for  all  the  shares  of  said  company, 
and  should  deliver  one  certificate,  signed  by  the  president, 
and  countersigned  by  the  treasurer,  and  sealed  with  the 
seal  of  the  company,  to  each  person,  for  every  share  by 
him  subscribed  and  held,  which  was  made  transferable  at 
his  pleasure  in  the  mode  prescribed,  subject,  however, 
to  all  payments  due  or  to  become  due  thereon.  It  was 
manifest,  from  the  peculiar  phraseology  of  this  provision 
of  the  charter,  that  the  Legislature  designed  that  the  cer- 
tificates of  stock  should  be  issued  immediately  to  each 
subscriber  for  every  share  of  stock  subscribed  by  him,  in 
order  to  constitute  him  and  his  assignee  a  stockholder  in 
the  company,  and  to  entitle  him  or  his  assignee  to  vote  as 
such,  and  to  exercise  all  the  rights  and  privileges  of  a 
stockholder  in  it,  subject,  nevertheless,  to  all  the  calls  or 
instalments  then  due,  or  thereafter  to  become  due,  on 
every  share  of  stock  subscribed  or  transferred  by  him.  If 
such  was  the  correct  construction  of  the  seventh  section  of 
the  charter,  then  it  was  clearly  incumbent  on  the  company 
to  tender  the  certificates  of  stock  due  to  the  defendant,  and 
to  show  that  they  were  ready  and  willing  to  do  all  that 
was  required  of  them  by  the  charter  in  regard  to  the  de- 
fendant, before  they  could  maintain  this  action  against 
him. 

James  A.  Bayard,  for  the  plaintiff:  In  reply  to  the  ob- 
jection raised,  he  had  first  to  say  that,  by  the  second  sec- 
tion of  the  charter,  it  was  provided  that,  as  soon  as  twenty 
thousand  shares  were  subscribed,  the  stockholders  should 
be  incorporated  by  the  name  of  the  "  Delaware  Railroad 
Company,"  and  by  that  name  should  have  power  to  sue 
and  to  exercise  the  usual  rights  and  franchises  of  a  corpo- 
ration.    It  w.as  then,  therefore,  that  every  subscriber  for 


154  SUPERIOR  COURT. 

stock  became  a  corporator  or  stockholder  in  the  company. 
It  was  the  subscription  for  stock,  not  the  issuing  of  certi- 
ficates of  stock,  that  then  constituted  the  defendant  and 
every  other  subscriber  a  stockholder  in  the  company,  and 
to  vote  and  act  as  such ;  otherwise  there  could  have  been 
no  organization  of  this  company  by  the  election  of  the  re- 
quired officers,  which  had  to  precede  the  collection  of  any 
money  on  the  subscription  for  stock,  as  none  was  required 
to  be  paid  in  at  the  time  of  subscribing,  or  before  organ- 
izing the  company.  It  was,  however,  in  every  case,  the 
subscription,  and  not  the  issuing  of  certificates  of  stock, 
that  constituted  a  subscriber  a  stockholder  in  an  incorpo- 
rated company.  Any.  and  Ames  on  Corp.,  sees.  113,  411. 
The  subscription  is  evidence  that  he  is  a  stockholder,  and 
enables  him  to  transfer  his  stock  by  assignment  in  the 
mode  prescribed  by  the  charter  or  by-laws  of  the  com- 
pany, and  that  assignment  would  constitute  the  assignee  a 
stockholder,  although  he  was  not  an  original  subscriber; 
but  an  original  subscriber  was  made  a  corporator  or  stock- 
holder by  the  act  itself,  and  was  so  with  or  without  a  cer- 
tificate. The  remedies  between  him  and  the  company 
were  mutual  and  correlative,  for  he  could  compel  the  com- 
pany to  issue  the  certificate  to  him,  and  the  company  could 
sue  and  compel  him  to  pay  his  subscription.  Chester  Glass 
(  brnpany  v.  Demcy,  16  Mass.  Rep.  100. 

11'.  Kaulsbury,  for  the  defendant:  The  court  would  find, 
on  examination,  that  the  charter  spoke  of  two  classes  of 
persons  in  this  connection.  One  class  was  termed  sub- 
scribers, the  other  stockholders.  The  defendant  was  not 
sued  as  a  stockholder,  and  was  nowhere  denominated  a 
stockholder  in  any  part  of  the  pleadings,  hut  always  a  sub- 
scriber to  the  stock  of  the  company.  There  was  no  pro- 
vision, however,  in  the  charter  for  suing  a  subscriber  as 
such,  but  it  authorizes  the  company  to  sue  a  stockholder 
for  such  a  cause  of  action  ;  and  this  provision  followed  the 
other  provision  in  the  charter,  which  required  certificates 
of  stock   to  be   issued   to   the   subscribers   as    the   evidence 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     155 

that  they  were  stockholders  in  the  company.  Such  was 
the  construction  which  all  the  provisions  of  the  charter 
when  taken  and  considered  together  required  in  his  opin- 
ion. The  act  seemed  to  distinguish  between  a  subscriber 
and  a  stockholder,  and  to  require  that  certificates  of  stock 
should  at  once  be  issued  to  constitute  the  latter  character, 
and  gave  this  remedy  only  against  stockholders  as  such ; 
but  the  suit  was  against  the  defendant  as  a  subscriber 
merely,  without  alleging  any  reason  for  withholding  the 
certificates  due  to  him  under  the  seventh  section  of  the 
charter,  and  therefore  the  plaintiff  was  not  entitled  to 
maintain  the  action. 

By  the  Court :  We  think  there  is  no  substantial  distinc- 
tion in  the  charter  between  the  meaning  of  the  terms  sub- 
scriber and  stockholder  as  indifferently  employed  in  it,  and 
that  a  subscriber  may  be  sued  even  under  this  charter  for 
arrears  due  from  him  on  his  subscription  without  proof 
that  certificates  of  stock  had  been  issued  or  tendered  to 
him.  We  do  not  consider  that  there  is  anything  in  the 
charter  to  require  or  warrant  the  refined  distinction  con- 
tended for  by  the  counsel  for  the  defendant.  AVe,  there- 
fore, refuse  the  motion  for  a  nonsuit. 

N.  B.  Smithers,  for  the  plaintiff:  In  the  year  1836,  the  Le- 
gislature, believing  that  such  an  improvement  would  be  a 
great  public  benefit,  incorporated  the  Delaware  Railroad 
Company,  to  construct  a  railroad  throughout  the  length  of 
the  State.  But  little  more  was  done  under  it,  however, 
than  to  make  the  preliminary  surveys  and  an  estimate  of 
the  cost  of  its  construction,  until  the  year  1849,  when  a 
supplement  was  passed  to  that  act,  reviving,  but  reducing 
the  extent  of  the  projected  enterprise,  by  altering  the  ter- 
mini of  the  road  from  Dona  River,  in  Kent  County,  to 
the  Xanticoke  River,  at  or  near  Seaford,  in  Sussex  County. 
and  authorizing  subscriptions  to  the  capital  stock  of  the 
company  as  thus  modified.  Tin'  commissioners  tor  open- 
ing books  met,  as  prescribed  in  the  act,  and  the  defendant 


156  SUPERIOR  COURT. 

subscribed  for  forty  shares  in  the  capital  stock  of  the  com- 
pany ;  and  at  the  first  meeting  of  the  subscribers  or  stock- 
holders he  was  elected  one  of  the  directors  in  the  company. 
A  call  far  an  instalment  of  three  dollars  on  each  share  of 
stock  subscribed  for  was  made  by  the  board  of  directors, 
on  the  22d  of  August,  1852,  payable  on  the  first  day  of 
December  following,  which  meeting  of  the  board  he  at- 
tended, and  of  which  call  he  received  due  and  formal  no- 
tice. Afterwards,  at  the  ensuing  session  of  the  Legisla- 
ture, which  commenced  in  January,  1853,  the  directors, 
with  the  sanction  and  consent  of  a  majority  of  the  stock- 
holders, applied  for  a  further  amendment  and  modification 
of  the  charter  of  the  company,  to  authorize  the  abandon- 
ment of  the  terminus  of  the  road  at  Dona  River,  and  to 
project  and  extend  it  further  up  the  iState,  so  as  to  connect 
and  unite  it  with  the  New  Castle  and  Frenchtown  Kail- 
road  in  New  Castle  County,  which  amendment  and  autho- 
rity was  granted  by  the  Legislature,  and  was  adopted  by  a 
majority  of  the  stockholders  at  a  meeting  afterwards  con- 
vened for  that  purpose  ;  and  the  company  has  since  accord- 
ingly abandoned  the  Dona  terminus,  and  the  construction 
of  that  part  of  the  road  which  lies  between  that  point  and 
Dover,  and  is  now  engaged  in  constructing  it  from  the 
New  Castle  and  Frenchtown  Railroad  to  Seaford,  on  the 
Nanticoke  River.  The  defendant  has  since  refused  to  pay 
the  call  for  the  instalment  of  three  dollars  a  share  on  the 
stock  subscribed  for  by  him,  and  insists  that  by  reason  of 
this  change  in  the  location  and  construction  of  the  road, 
since  he  subscribed  for  the  stock,  he  is  discharged  from 
the  duty  and  legal  liability  which  he  then  contracted  to 
pay  it. 

To  determine  the  question  thus  presented  it  was  neces- 
sary in  the  first  place  to  consider  the  status  of  a  corpora- 
tor, and  what  constitutes  a  corporator.  Now,  what  was  a 
corporation?  For  a  legal  definition  of  the  term  he  should 
refer  to  a  well-known  authority,  Ang.  find  Aims  on  Corp,  1. 
And  how  did  such  a  body  politic  or  corporate  act  ?  It  acted 
by  a  majority  of  the  corporators,  and  when  the  majority 


DELAWAEE  KAILKOAD  COMPANY  v.  THAKP.     157 


determined,  the  minority  was  absolutely  lost  and  absorbed 
in  the  majority,  and  there  was  then  in  legal  contemplation 
no  minority.  Ang.  and  Ames  on  Corp.,  sec.  499  ;  Grindley 
v.  Barker,  1  Bos.  and  Pid.  235.  The  act  of  the  majority 
concludes  the  minority,  and  becomes  the  act  of  the  minority 
and  of  the  whole  body.  For  the  right  of  a  corporation  to 
apply  to  the  Legislature  for  an  amendment  of  its  charter, 
to  authorize  alterations  and  variations  in  its  undertakings, 
he  would  refer  to  a  single  case,  which  fully  sustained  it  in 
its  broadest  and  most  comprehensive  scope.  Ware  v.  The 
Grand.  Junction  Water  Company,  2  Buss,  and  Milnes  Ch.  Bep. 
470.  The  defendant  individually,  or  simply  as  Beniah 
Tharp,  had  no  contract  touching  this  matter  with  the  State, 
but  the  contract  was  between  the  State  and  the  company, 
and  the  contract  on  which  he  was  sued  was  not  between 
him  and  the  State,  but  between  him  and  the  company,  and 
there  was  no  contract,  either  express  or  implied,  between 
him  and  the  latter  that  it  should  not,  if  a  majority  of  the 
stockholders  should  deem  it  advisable,  apply  to  the  Legis- 
lature for  an  amendment  and  modification  of  its  charter,  to 
secure  in  a  better  and  more  effectual  way  the  objects  of 
the  incorporation.  The  relation  which  he  bore  to  the  State 
in  the  matter  was  only  as  a  member  of  the  company,  and 
as  a  member  his  existence  was  merged  in  the  corporation, 
and  he  was  bound  by  the  act  of  the  majority.  Gray  v.  The 
Monongahela  Navigation  Company,  2  Watts  and  Serg.  156. 
Whenever  a  person  entered  into  a  corporation  as  a  mem- 
ber of  it  he  did  so  subject  to  the  right  of  the  State  to  vary 
or  alter  the  undertaking  with  the  consent  of  the  corpora- 
tion,  unless  it  was  expressly  stipulated  at  the  time  that  it 
should  not  be  done,  even  though  the  alteration  might 
plunge  the  company  in  greater  expense  than  was  originally 
contemplated;  because  the  subscriber  is  not  bound  to  con- 
tribute any  more  than  he  subscribed  to  the  original  enter- 
prise, and  the  State  docs  not  compel  the  change,  but  only 
consents  that  the  company  may  make  it,  and  if  determined 
upon,  it  is  the  act  of  the  company  and  hinds  every  member 
of  it.     Middle  and  Great   Western  RaHtray  Company  v.  Gov- 


158  SUPERIOK  COURT. 

don,  16  Mees.  and  Wels.  804.  He  was  aware  that  one  case 
might  and  probably  would  be  cited  against  him  on  this 
point,  the  case  of  The  Hartford  and  Neic  Haven  Railroad 
Company  v.  Crosswell,  5  Hill,  383.  But  that  case  was  not 
sound,  and  had  been  since  overruled  and  repudiated,  even 
in  New  York,  by  the  case  of  White  v.  The  Syracuse  and 
Utica  Railroad  Company,  14  Barb.  559.  In  the  latter  case 
the  Court  recognized  the  principle,  that  the  charter  was  a 
contract  between  the  State  and  the  corporation,  and  that 
there  was  no  contract  involved  or  implied  in  it  between 
the  State  and  an  individual  corporator,  and  that  the  com- 
pany had  the  power  for  such  a  purpose  to  bind  the  corpo- 
rator by  its  .act  and  consent.  The  principle  was  now  too 
well  established  to  be  shaken,  that  the  act  of  incorporation 
was  a  contract  between  its  members  and  the  sovereign  who 
granted  it,  formed  by  the  consent  of  both  parties,  and  so 
far  as  the  rights,  duties  and  obligations  of  an  individual 
corporator,  as  a  corporator,  were  concerned,  he  was  bound 
by  the  acts  of  a  majority  of  the  corporation.  The  Troy  and 
Rutland  Railroad  Company  v.  Kerr,  17  Barb.  582;  Revere  v. 
The  Boston  Copper  Company,  15  Pick.  351. 

W.  Saulsbury,  for  defendant :  He  would  not  dwell  long 
on  the  facts  of  the  case.  His  object  would  simply  be  to 
present,  for  the  consideration  of  the  Court,  the  principles 
of  law  on  which  he  relied  for  a  verdict  in  favor  of  the  de- 
fendant in  the  action.  The  evidence  disclosed  this  state 
of  facts  :  The  Delaware  Railroad  Company  was  chartered 
in  1836,  and  was  modified  in  1849,  by  which  modification 
the  road  was  located  from  Dona  River  to  the  Xanticoke, 
at  or  near  Seaford ;  and  that  was  the  road  which  he  sub- 
scribed to  the  stock  of  the  company,  and  contracted  to  pay 
his  money  to  construct,  and  not  the  road  which  the  com- 
pany was  then  making  from  the  New  Castle  and  French- 
town  Railroad  to  Seaford,  on  the  Xanticoke.  At  the  time 
when  lie  subscribed,  the  company  had  no  design  and  no 
authority  to  locate  or  construct  any  such  road  as  the  latter, 
or  anv  road  beyond  the   limits  of  Kent  and  Sussex  Coun- 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     159 

ties.  The  purpose  and  powers  of  the  company,  as  well  as 
the  termini  prescribed  and  fixed  by  the  charter,  restricted 
and  confined  the  location  and  construction  of  the  road  at 
that  time  to  the  points  and  within  the  limits  just  stated, 
and  the  contract  of  the  defendant  was  to  contribute,  by  the 
purchase  of  stock,  the  amount  subscribed  by  him,  to  the 
construction  of  such  a  road,  and  no  other.  lie  did  not 
pretend  that  the  defendant  personally,  or  as  an  individual 
corporator,  had  any  contract  with  the  State  in  regard  to 
the  matter;  but  that  was  his  contract  with  the  company, 
and  the  only  contract  entered  into  by  him  in  relation  to 
the  subject.  He  would  not  go  so  far  as  to  contend  that  any 
and  every  variation  or  change  in  the  location  of  a  railroad 
from  the  route  originally  contemplated  or  projected,  would 
discharge  a  subscriber  to  the  stock  of  a  company  from  his 
legal  obligation  to  pay  for  it;  but  when  the  alteration 
adopted  by  the  company  involved  the  total  abandonment 
of  the  beginning  point  for  the  road,  and  such  a  radical 
change  in  the  length  and  general  direction  of  it  as  to 
amount  to  another  and  an  entirely  different  road  from  the 
one  originally  projected  and  commenced  by  the  company, 
it  would  absolve  him  from  the  obligation,  if  he  saw  fit  to 
take  advantage  of  the  breach,  or  rather  of  the  non-per- 
formance of  the  contract  by  the  company.  13  Illinois  Rep. 
504;  8  Moss.  267.  In  the  case  last  cited,  which  was  the 
case  of  an  incorporated  turnpike  company,  which  sued  a 
subscriber  for  an  assessment  which  he  refused  to  pay,  be- 
cause of  a  change  in  the  location  of  the  road  authorized  by 
an  act  of  the  Legislature,  subsequent  to  his  subscription, 
the  Court  remarked  that  the  plaintiff'  sued  on  au  express 
contract  of  the  defendant,  and  they  were  bound  to  prove 
it  as  they  alleged  it,  and  rested  its  decision  in  favor  of  the 
defendant,  on  the  ground  of  the  change  in  location  and 
direction  of  the  road.  In  the  case  before  the  Court  the 
declaration  was  on  the  contract  of  the  defendant  to  take 
and  pay  for  the  stock  subscribed  for  by  him,  as  the  same 
should  hi-  required  and  called  for,  t<>  construct  the  road 
from  Dona  to  the  Xanticoke  River;   for  that  was  tin'  onlv 


160  SUPERIOR  COURT. 

contract  entered  into  by  him,  and  the  only  one  that  could 
have  been  declared  upon  against  him.  It  was  also  an  ex- 
press contract;  and,  on  the  authority  of  the  case  in  Mas- 
sachusetts, it  was  incumbent  upon  the  plaintiff  to  prove  it 
as  it  was  alleged,  or  he  could  not  recover  upon  it.  In  a 
case  like  the  present,  the  liability  of  the  subscriber  was 
restricted  to  the  road,  as  the  same  was  chartered  and  con- 
templated at  the  time  lie  subscribed.  10  Mass.  384 ;  1  New 
Ihnnp.  Rep.  44.  For  the  contract  between  the  company 
and  the  subscriber  in  such  a  case  was,  that  the  former  would 
make  the  work  then  chartered,  designed,  and  contem- 
plated, and  that  the  latter  would  pay  for  the  shares  sub- 
scribed for  that  purpose,  and  the  contract  could  not  after- 
wards be  varied  without  the  consent  of  both  parties.  In 
the  case  of  The  Hartford  and  New  Haven  Railroad  Company 
v.  Cross-well,  5  Hill,  383,  which  the  counsel  on  the  other 
side  had  said  "had  been  overruled  (but  which  he  should 
show  had  not  been  overruled),  it  was  held  that  the  charter 
was  the  fundamental  law  of  the  association  or  corporation, 
and  to  which  the  corporator  subscribed,  and  it  was  not 
competent  for  the  Legislature  and  the  company  by  consent 
to  introduce  new  and  radical  changes  in  the  objects  ori- 
ginally contemplated,  so  as  to  bind  the  corporator  without 
his  consent;  and  a  contrary  doctrine  was  stated  by  the 
Court  to  be  monstrous.  It  was  not  true  that  that  case  had 
been  overruled  by  the  eases  cited  on  the  other  side  from 
14  Barb.  559,  and  17  Barb.  GOT.  On  the  contrary,  the 
Court  would  find,  on  examination,  that  they  recognize  and 
sustain  the  principle  ruled  in  that  case.  In  the  case  cited 
from  '1  Watts  <in<l  Serq.  15G,  the  change  or  variation  autho- 
rized, was  but  incidental  to  the  original  object  contem- 
plated in  the  charter,  and  involved  no  departure  from  the 
main  object,  hut  was  in  tact  subsidiary  to  it.  The  object 
was  t<>  improve  the  navigation  of  a  stream,  and  the  addi- 
tional power  was  to  authorize  the  erection  of  a  dam  in  it, 
without  which  the  improvement  could  not  he  accomplished. 
It  was  therefore  nothing  more  than  the  addition  of  a  neces- 
sary power  to  carry  out   and  complete  the  original  enter- 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     161 

prise.  The  same  remark  would  apply  to  the  case  cited  011 
the  other  side  from  2  Russ.  and  Milne,  470 ;  for  the  amend- 
ment of  the  charter  in  that  case  also  involved  no  essential 
change  in  the  original  object  of  the  incorporation,  but 
might  be  fairly  Considered  as  merely  incidental  to  it,  in 
which  respect  both  differed  widely  from  the  case  before 
the  Court. 

C.  S.  Layton,  on  the  same  side:  A  corporation  was,  to  a 
certain  extent,  a  partnership,  with  this  difference,  that 
while  private  partners  were  individually  liable  for  the  debts 
of  the  firm,  corporations  were  created  for  specific  objects, 
with  limited  liability  as  to  the  corporators. 

The  chartered  road  to  which  the  defendant  subscribed 
was  the  road  from  Dona  to  Nanticoke  River,  and  he  con- 
tracted with  the  company  for  no  other  purpose,  and  situ- 
ated as  he  was,  in  the  forest  of  Mispillion  Hundred,  remote 
from  market  and  from  navigation,  it  was  not  only  impor- 
tant to  him  but  an  actual  inducement  with  him,  to  have  a 
railroad  constructed  on  the  line  projected  in  the  act  of  1849, 
with  its  terminus  at  Dona  River,  as  a  convenient  point  of 
shipment  of  produce,  for  either  Philadelphia  or  by  the 
Delaware  Bay  and  coastwise  for  Naw  York  and  Boston ; 
and  he  accordingly  subscribed  to  the  stock  of  the  company 
to  make  that  road.  But,  by  the  articles  of  agreement  with 
the  Xew  Castle  and  Frenchtown  Railroad  Company,  the 
Delaware  Railroad  Company  had  engaged  to  abandon  and 
had  abandoned  Dona  River  a*  a  terminus,  and  was  now 
employed,  by  means  of  the  changes  since  introduced  in 
their  charter,  in  constructing  their  railroad  from  Seaford, 
on  the  Xanticoke,  to  connect  with  the  Xew  Castle  and 
Frenchtown  Railroad,  which  has  its  eastern  terminus  at 
New  Castle,  on  the  Delaware  River.  This,  it  was  manifest, 
was  never  contemplated  by  the  defendant,  for  he  did  not 
imagine  that  such  a  railroad  as  this  was  to  be  constructed 
by  the  company  when  he  subscribed  for  his  forty  shares  of 
the  capital  stock  in  it,  and  it  was  equally  clear  that  In 
never  contracted  with  the  company  to  contribute  his  sub- 


162  SUPERIOR  COURT. 

ecription  for  the  construction  of  such  a  railroad  as  that 
which  the  company  was  now  making. 

He  would  here  remark  that  on  the  main  point  of  the 
case  there- was  no  conflict  of  decisions. 

He  would,  however,  in  the  first  place,  ask  this  Court  to 
charge  the  jury  that  the  defendant  was  not  a  stockholder 
in  the  company  until  a  certificate  for  each  share  of  stock 
subscribed  by  him  was  delivered  to  him ;  that  the  certifi- 
cate of  stock  was  essential  to  constitute  him  a  stockholder, 
and  that  it  was  necessary  that  the  company  should  either 
have  delivered  or  tendered  to  him  the  certificates  of  stock, 
before  they  could  maintain  this  action  against  him. 

Secondly,  that  the  change  in  the  terminus  of  the  rail- 
road, from  Dona  River  to  the  junction  of  the  New  Castle 
and  Frenchtown  Railroad,  discharged,  cancelled  and  an- 
nulled the  contract  between  the  defendant  and  the  com- 
pany to  pay  for  the  forty  shares  of  stock  subscribed  for  by 
him  under  the  charter  of  1849. 

He  did  not  maintain,  however,  that  a  change  in  the  loca- 
tion of  the  road  retaining  the  termini  as  originally  de- 
signed, or  that  any  change  of  charter  by  amendment,  con- 
ferring additional  powers  upon  the  company  merely  to 
carry  out  in  a  more  complete  and  ample  manner  the  ori- 
ginal objects  of  the  enterprise  would  have  that  effect;  but 
when  the  deviation  or  change  authorized  was  in  the  ter- 
mini of  the  road,  it  was  a  radical  change,  and  would  dis- 
charge the  subscriber  from  his  contract  with  the  company, 
unless  he  had  afterwards  assented  to  the  change,  and  the 
proof  of  that  assent  was  produced  before  the  Court  and 
jury.  The  carrying  a  railroad  through  a  portion  of  a  line 
marked  out  by  its  charter,  is  a  nominal,  not  a  real  compli- 
ance with  its  charter.  Wordsworth  on  Joint  Stork  Companies, 
39  Law  Libr.  6ft.  In  private  articles  of  association,  the  arti- 
cles of  association  were  the  fundamental  law  of  the  body, 
and  it  could  not  change  its  articles  in  their  material  objects 
so  as  to  bind  its  subscribers  without  their  consent;  and  the 
same  was  the  law  in  regard  to  corporations,  particularly  if 
the  change  should  be  prejudicial  to  the  interests  of  the 


.     DELAWARE  RAILROAD  COMPANY  v.  THARP.     163 

stockholders.  Ang.  and  Ames  on  Corp.  483.  The  change  or 
alteration  authorized  by  the  Legislature  may  be  so  great  an 
radical  in  the  charter  as  to  absolve  the  corporator  from  his 
contract  with  the  company.  Ang.  and  Ames  on  Corp.  485 ;  The 
American  Bank  v.  Baker  el  al.,  4  Metcalf  R.  164.  On  the  au- 
thority of  that  case  he  should  contend,  that  as  there  was  no 
proof  before  the  jury  that  the  defendant  was  present  at  the 
meeting  which  resolved  to  apply  to  the  Legislature  for  the 
change  of  the  charter,  or  at  the  meeting  which  resolved  to 
change  the  route  of  the  road  from  Dona  River,  and  as  there 
was  no  evidence  that  he  subsequently  assented  to  them, 
that  the  company  could  not  sustain  this  action  against  him. 
2  Conn.  R.  579;  Day's  Dig.  108;  4  Henn.  and  Mumf.  315; 
5  Hill,  8  Mass.  R.,  and  13  Illinois  R.,  cited  by  his  colleague. 
On  the  strength  of  these  cases,  which  had  never  been 
overruled,  he  would  venture  to  assert  that  even  if  it  were 
proved  that  the  defendant  was  present  at  these  meetings, 
and  assented  to  all  these  changes,  the  plaintiffs  still  could 
not  recover  in  this  action.  The  case  in  17  Barb.  R.,the 
strongest  against  him  cited  on  the  other  side,  recognized 
and  confirmed  the  decision  in  5  Hill,  on  which  they  relied. 
In  the  case  in  17  Barb.  R.,  it  was  held  that  the  change  in 
the  charter  was  but  incidental  to  the  original  object  of  the 
incorporation,  and  was  consequently  an  alteration  to  which 
the  stockholder  may  be  held  to  have  impliedly  assented, 
and  therefore  he  was  considered  not  to  be  discharged  from 
his  contract  with  the  company. 

Mr.  Bayard,  for  the  plaintiff,  cited  Mercer  County  v.  Coo- 
vert,  6  Watts  and  Serg.  70,  and  gave  the  counsel  on  the 
other  side  an  opportunity  of  replying  to  it  if  they  desired 
to  do  so. 

Mr.  Dayton:  A  county  was  a  quasi  corporation,  and  as 
such  was  as  much  bound  to  observe  its  contracts  as  a  cor- 
poration, and  he  thought,  on  a  critical  examination  of  the 
report  of  that  case,  it  would  be  found  to  support  the  posi- 
tion for  which  he  had  contended, — the  inviolability  of  the 


164  SUPERIOR  COURT. 

contract;  as  it  was  held  in  the  case  cited  that  the  change 
in  the  location  of  the  bridge,  after  the  guarantee  given  by 
the  defendants,  absolved  the  defendants  from  any  liability 
on  the  guarantee. 

James  A.  Bayard,  for  the  plaintiff:  It  was  proved  that  the 
defendant  subscribed  for  forty  shares;  also,  the  organiza- 
tion of  the  company,  the  call  for  the  instalment  of  three 
dollars  on  each  share,  and  the  notice  of  it  to  the  defendant 
were  proved.  The  counsel  for  the  defendant  who  last 
addressed  the  jury  remarked,  that  the  chief  inducement 
which  the  defendant  had  for  subscribing  to  the  railroad 
terminating  at  Dona  River  might  have  been,  the  outlet 
which  it  would  afford  him,  and  others  residing  like  him  in 
the  interior  of  the  State  and  remote  from  navigation,  for 
the  shipment  of  produce  and  lumber  from  that  river  with 
greater  facility  and  convenience,  either  by  the  bay  to 
Philadelphia  or  coastwise  to  New  York  or  Boston,  or  other 
seaports,  at  their  pleasure.  But  this  was  a  consideration, 
whatever  might  have  been  its  influence  with  the  defendant, 
which  could  have  no  weight  or  importance  in  the  determi- 
nation of  this  action,  for  it  was  a  well-established  as  well 
as  a  wise  principle  of  law,  that  private  considerations,  and 
expectations  of  individual  benefit  and  profit,  cannot  be 
allowed  to  have  entered  at  all  into  the  reasons  which  in- 
duced him  to  subscribe  to  the  proposed  enterprise,  and 
that  his  contract  to  take  and  pay  for  the  stock  was  to  be 
construed  and  enforced  in  a  court  of  law,  without  any  re- 
gard whatever  to  such  private  considerations  and  expecta- 
tions. On  the  contrary,  before  such  a  forum  as  this,  every 
stockholder  was  to  be  presumed  to  have  subscribed  for  his 
stock  from  considerations  of  the  public  good,  from  motives 
of  public  spirit,  and  from  the  expectation  of  profit  which 
he  might  hope  to  derive  possibly  from  the  investment  of 
money  in  the  stock,  as  in  the  purchase  of  any  other  species 
of  property,  and  without  any  regard  to  the  incidental  ad- 
vantages and  facilities  which  the  work  might  afford  him 
when  made. 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     165 

The  facts  relied  on  by  the  other  side  were  that,  after  the 
subscription  of  the  defendant  to  the  stock  of  the  company, 
the  latter  applied  to  the  Legislature  to  authorize  a  change 
of  the  terminus  of  the  road  from  Dona  River ;  that  the  au- 
thority was  given,  accepted  by  the  company,  and  that  the 
terminus  of  the  railroad  at  Dona  River  has  since  been 
changed  and  abandoned,  and  by  this  they  contend  that  the 
defendant  has  been  absolved  from  his  liability  on  the  con- 
tract to  pay  his  subscription.  To  that  he  replied,  that  the 
application  to  the  Legislature  to  authorize  the  change,  and 
the  change  authorized,  and  afterwards  adopted,  were  all 
duly  sanctioned  and  approved  by  a  vote  of  a  majority  of 
the  stockholders,  in  meetings  convened  according  to  the 
rules  and  regulations  of  the  company  for  that  purpose, 
and  that  therefore  the  defendant  had  not  been  discharged 
thereby  from  his  subscription,  but  was  bound  to  pay  it. 

This  case,  and  the  cases  cited  and  relied  upon  on  the 
other  side,  had  all  arisen  from  one  case,  the  case  in  5  Hill 
Rep.,  and  that  had  all  been  the  result  of  the  misconception 
of  Judge  Nelson,  by  whom  it  was  decided,  of  the  cases 
which  had  been  ruled  in  Massachusetts. 

He  should  ask  the  Court  to  charge  the  jury  that  the 
change  in  the  terminus  of  the  road,  the  contract  with  the 
New  Castle  and  Frenchtown  Railroad  Company,  and  the 
contract  with  the  Philadelphia,  Wilmington  and  Baltimore 
Railroad  Company,  and  the  Wilmington  and  New  Castle 
Railroad  Company,  have  not  discharged  the  defendant 
from  the  contract.  Because  the  defendant  had  not  assented 
to  the  act  of  1853,  it  was  contended  that  he  had  been  dis- 
charged from  his  contract.  But  was  not  this  a  singular 
effect  to  claim  for  such  an  act?  For,  if  the  company  had 
violated  its  supposed  contract  with  the  defendant  to  make 
the  road  to  Dona  River,  it  would  not  discharge  the  de- 
fendant from  his  contract,  but  he  would  have  a  right  to  go 
into  chancery  for  an  injunction  to  restrain  the  company 
from  abandoning  that  terminus,  and  to  compel  it  to  make 
the  road  to  that   point;   while  they,  on   their  part,  might 


166  SUPERIOR  COURT. 

oblige  him  to  pay  his  subscription  and  comply  with  his 
contract  with  them. 

A  corporation  was  not  a  partnership.  A  partner  could 
receive  and  discharge  the  debts  of  the  firm,  and  he  could 
supervise  the  business  of  it,  and  was  personally  liable  for 
all  the  legitimate  engagements  of  the  firm.  A  corporator 
had  no  such  powers,  and  was  subject  to  no  such  liability. 
A  partner  had  a  joint  but  undivided  interest  and  property 
in  everything  owned  by  the  firm ;  but  a  corporator  had  no 
such  joint  and  undivided  interest  in  the  property  of  the 
corporation,  for  his  only  property  was  in  his  shares  of  the 
capital  stock  of  the  company.  The  corporator,  therefore, 
had  not  the  interest  in  the  property  of  the  corporation 
which  the  partner  had  in  the  property  of  the  partnership. 
In  the  first  case,  the  property  is  all  vested  in  the  artificial 
being  created  by  the  Legislature,  the  company;  in  the 
other  case,  the  property  was  all  vested  in  the  individual 
members  of  the  firm.  If  a  corporation  owned  real  estate, 
that  did  not  make  the- corporator  a  land-owner,  and  he 
could  not  vote  upon  it;  he  had  no  estate  in  the  land,  that 
was  all  vested  in  the  artificial  being,  the  company,  and  the 
corporator  had  no  property  in  anything  but  in  his  shares 
of  stock.  Such  was  not  the  case  of  a  partner,  however; 
he  was  a  land-owner,  and  had  a  joint-estate  in  the  real  pro- 
perty of  the  firm.  Corporations  were  bodies  politic  and 
little  republics,  and  a  majority  of  the  corporators  governed. 
The  right  of  the  corporator  is  in  his  share  and  to  vote,  and 
he  was  bound  by  the  votes  of  a  majority,  whether  it  was 
under  the  charter  or  in  an  application  of  the  company  to 
the  sovereign  for  a  change  of  the  charter.  1  Kidd  on  Corp. 
13  ;  Any.  and  Ames  ox  Corp.  1 ;  1  Bos.  and  Pal.  235  ;  15  Pick- 
ering, 351.  What  was  the  contract  of  the  corporator  with 
the  corporation,  and  what  was  the  contract  <>t'  the  defendant 
with  the  corporation  in  this  case?  (Reads  the  subscription 
clause  in  the  charter,  sec.  1),  and  asked  it'  this  was  not  an 
absolute  contract  to  take  the  shares  of  stock  subscribed, 
without  any  condition  or  stipulation  whatever,  whether  as 
to  any  future  application  to  the  Legislature  for  an  amend- 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     167 

ment  of  the  charter,  or  that  the  railroad  should  be  made 
as  then  projected  in  the  charter?  It  was  an  absolute  and 
unconditional  contract  to  take  forty  shares  in  the  stock  of 
the  company,  and  in  consideration  of  those  shares  to  pay 
for  it.  But  the  idea  had  somehow  or  other  sprung  up 
that  there  was  involved  in  this  transaction  an  implied  pro- 
mise by  the  company  to  the  subscriber  that  the  work  should 
be  constructed.as  contemplated  and  projected  at  "the  time 
of  the  subscription-.  There  was  no  such  contract,  either 
express  or  implied,  between  the  corporation  and  the  cor- 
porator. The  only  contract  in  such  a  case  was  that  which 
he  had  already  stated.  By  the  purchase  of  the  shares  the 
stockholder  acquired  a  property  in  them,  with  the  rights 
of  property  incident  to  it,  and  a  right  to  vote  upon  them ; 
and  the  very  existence  of  the  corporation  required  that  he 
should  be  governed  by  the  vote  of  the  majority.  The 
stock  which  he  held,  or  for  which  he  had  subscribed,  had 
no  such  incident  as  the  implied  contract  to  which  he  had 
alluded.  His  obligation  was  to  pay  for  the  shares;  the 
obligation  of  the  corporation  was  to  convey  to  him  the 
shares  of  stock  subscribed  for,  with  all  the  rights  of  pro- 
perty incident  to  it,  according  to  the  charter.  If  this  was 
not  so,  how  would  you  get  along  in  the  case  of  an  assign- 
ment of  the  stock,  with  an  assignee  refusing  to  pay  the 
arrears  of  subscription  due  on  the  stock  assigned  him  sub- 
sequent to  a  change  authorized  in  the  road?  Could  he 
plead  such  an  implied  contract  ?  But  there  was  no  sound- 
ness in  this  distinction,  and  there  could  be  none  in  such  a 
distinction  as  were  found  in  some  of  the  books,  and  recog- 
nized and  admitted  in  others  cited  on  the  other  side,  if  it 
be  a  contract  between  the  corporation  and  the  corporator 
at  the  time  he  subscribes,  that  the  work  shall  be  made  as 
authorized  and  designed  at  that  time,  between  large  and 
small  changes,  or  between  what  are  called  radical  and  less 
important  changes  in  the  line  or  mode  of  constructing  the 
projected  improvement;  because,  it'  there  was  any  legal 
foundation  for-  such  an  idea  as  that,  it  must  be  on  the 
ground  that  such  a  change  would  impair  the  obligation  of 


168  SUPERIOR  COURT. 

the  contract,  by  attempting  to  vary  or  change  it  without 
the  consent  of  the  corporator.  Now,  it  was  manifest,  if 
this  was  so,  it  was  utterly  immaterial  whether  the  change 
was  great  or  small.  The  Constitution  of  the  United  States 
made  no  distinction  between  such  cases,  between  altering 
the  contract  or  the  impairing  of  the  obligation  of  it,  in  a 
greater  or  smaller  degree,  and  authorized  the  Legislature 
to  make  no  such  discrimination.  On  the  contrary,  it  was 
evident  that,  if  the  exemption  of  a  corporator  from  his 
liability  to  pay  for  his  stock,  was  based  on  the  idea  of  a 
contract  between  him  and  the  corporation,  which  could 
not  be  changed  without  his  consent,  any  change  whatever 
from  the  work  as  then  chartered  and  projected  would  dis- 
charge him.  It  was  contrary  to  the  practice  of  the  Legis- 
lature, and  the  settled  views  and  received  opinions  of  the 
profession  in  this  State,  in  regard  to  the  many  and  constant 
changes  made  by  the  Legislature  in  the  rechartering  of 
banks,  and  the  modifications  made  in  the  charter  of  almost 
every  corporation  existing  amongst  us.  "What  would  be 
the  effect  if  such  a  principle  had  ever  been  understood  to 
prevail  in  this  State,  and  that  any  one  dissenting  stock- 
holder could  have  forbidden  the  renewal  of  the  charter, 
and  compelled  the  company  to  wind  up,  as  he  could  have 
done  if  such  was  the  law  on  the  subject? 

The  idea  on  the  other  side  drawn  from  the  similitude  of 
a  partnership  was,  that  the  contract  between  the  corpora- 
tion and  the  subscriber  was  extended  by  implication,  to 
prevent  any  radical  change  in  the  purposes  of  the  incor- 
poration. This  he  denied,  and  had  shutvn  that  the  con- 
tract was  that  he  was  to  pay  the  amount  subscribed  tor  his 
shares  of  stock,  and  the  company  was  to  grant  him  the 
stock,  with  all  the  rights  of  property  incident  to  it,  which 
incidents  would  depend  on  the  nature  of  the  regulations 
prescribed  by  the  charter  on  the  subject.  This  was  the 
contract,  and  this  Was  the  only  contract  which  the  corpo- 
ration, with  the  sanction  of  this  Legislature,  could  not 
change  without  the  consent  of  the  subscriber.  All  other 
rights  and  interests  which  he  had  in  the  corporation  were 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     109 

subject  to  the  decision  of  a  majority  of  the  corporators — 
the  great  and  fundamental  law  of  all  corporations.  15 
Pickering,  153.  The  decision  in  that  case  was,  that  the 
votes  and  acts  of  a  majority  of  the  corporators,  while  they 
may  rule  the  interests  of  a  corporator  as  a  corporator,  they 
could  not  affect  his  contracts  with  the  corporation  not  as  a 
corporator ;  and  this  he  admitted.  The  right  of  the  com- 
pany to  apply  to  the  Legislature  for  authority  to  enlarge 
and  change  their  works,  or  totally  to  change  their  charter, 
as  incident  to  such  a  corporation,  notwithstanding  the 
objection  of  a  corporator,  was  clearly  and  expressly  recog- 
nized and  ruled  in  the  case  cited  by  his  colleague,  from  2 
Rass.  £  Milne,  470.  It  was  a  necessary  incident  of  a  cor- 
poration that  it  should  have  the  right,  with  the  approba- 
tion of  a  majority  of  the  shareholders,  to  apply  to  the 
Legislature  for  a  change  of  its  charter ;  and  every  one  who 
came  into  it  was  bound  by  the  votes  of  a  majority,  unless 
he  had  stipulated  against  it  at  the  time  of  subscribing;  for 
there  was  no  implied  engagement  or  contract  of  the  cor- 
poration to  the  contrary.  The  Pennsylvania  cases  were 
with  us.  The  corporation  could  not  do  anything  to  de- 
prive the  corporator  of  his  share,  or  to  make  him  pay  more 
money  on  or  for  his  share  than  he  originally  agreed  to  pay 
for  it,  without  his  consent,  with  or  without  the  sanction  of 
the  Legislature ;  because  that  would  be  to  affect  and  pre- 
judice him,  not  as  a  corporator,  but  as  an  individual,  out- 
side of  the  corporation,  and  would  be  a  violation  of  his 
contract.  2  Watts  <f  Serg.  161;  6  Watts  £  Serg.  71,  72. 

In  the  case  cited  from  8  Mass.  2G2,  the  change  authorized 
by  the  Legislature  increased  the  amount  which  the  sub- 
scriber engaged  to  pay  at  the  time  of  subscribing.  Jt  had 
been  previously  decided  in  that  State  that,  where  the 
charter  had  given  only  the  right  of  forfeiture  for  the  non- 
payment of  instalments  due  upon  the  shares,  an  action  at 
law  might  be  maintained  by  the  company  for  the  amount 
of  the  share  against  the  subscriber  on  his  contract  to  pay 
for  the  share,  as  a  collateral  contract;  and  that,  notwith- 
standing the  charter,  gave  no  action  at  law  tor  it,  and  the 

12 


170  SUPERIOR  COURT. 

only  remedy  provided  by  the  statute  was  by  forfeiture; 
but  the  Court  also  decided  that  the  action  in  that  case 
being  on  the  express  contract  by  the  subscriber  to  take 
and  pay  for  the  shares  of  stock  subscribed,  as  a  collateral 
promise  made  by  him  not  as  a  corporator,  but  as  an  indi- 
vidual, it  must  be  declared  on  as  it  was  actually  made,  and 
it  could  not  be  changed  by  the  corporation  and  the  Legis- 
lature without  his  consent.  10  Mass.  H.  384.  lie  referred 
to  the  case  in  5  Hill,  383,  and  denied  that  the  decision  in 
that  case  was  law,  and  that  it  was  shaken  by  the  case  in 
14  Barb.  559,  and  was  in  effect  overruled  by  the  case  in  17 
Barb.  607.  The  Illinois  case  holds  the  change  to  be  bind- 
ing if  it  was  designed  to  carry  out  the  original  under- 
taking. And  if  it  were  necessary  to  reconcile  the  present 
with  the  ruling  in  that  case,  it  might  be  done  by  showing 
the  first  incorporation  in  1836  and  its  objects;  its  change 
and  reduction  of  capital  in  1849;  and  its  subsequent  change 
to  the  present,  which  was  more  in  accordance  with  the  ori- 
ginal object  of  the  charter  than  the  amendment  of  1849. 
But,  after  what  lie  had  said  on  the  subject  of  greater  and 
smaller  variations  in  this  respect,  he  hardly  deemed  it 
necessary  to  notice  that  ease  any  further,  or  to  say  anything 
more  in  regard  to  if. 

The  Court,  Wootten,J.,charr/eilthejur>/:  This  case,  which 
has  been  protracted  to  considerable  length  by  a  thorough 
investigation  of  the  facts,  and  an  elaborate  argument  of  the 
law  on  both  sides,  has  now  been  brought  to  that  stage  of 
it  when  it  becomes  necessary  tor  the  Court  to  announce  to 
you  their  opinion  of  the  law,  as  applicable  to  it,  and  which 
must  mainly  govern  the  decision  of  it,  as  there  appears  to 
be  but  little  controversy  in  regard  to  the  facts  which  per- 
tain t<>  it. 

It  is.  as  you  are  already  aware,  an  action  commonly 
called  an  action  of  as-auipsit,  brought  by  the  Delaware 
Railroad  Company  against  lieniah  Tharp  to  recover  from 
him  8120,  the  amount  of  a  call  made  on  him  of  three  dol- 
lars  per  share   on   his  subscription  of  forty  -hare-  (A'  the 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     171 

capital  stock  of  the  company,  with  interest  at  the  rate  of 
two  per  cent,  per  month  from  thirty  days  after  such  call, 
which  was  on  the  1st  of  December,  1852. 

To  entitle  the  plaintiffs  to  recover  it  is  necessary  that 
they  should  prove  first,  the  legal  existence  of  the  company 
as  a  corporation ;  and  this  is  done  by  showing  that  the 
Legislature  passed  the  charter,  and  by  showing  that  the 
company  has  been  organized  according  to  the  terms  and 
stipulations  of  the  charter. 

Secondly,  that  Beniah  Tharp,  the  defendant,  subscribed 
to  the  capital  stock  of  this  company  to  the  amount  of  forty 
shares,  at  $25  per  share. 

Thirdly,  that  5000  shares  of  stock  were  subscribed;  that 
the  call  was  made  for  the  amount  claimed  and  notice  there- 
of given  as  authorized  and  required  by  the  charter,  that  is. 
by  publication  in  two  newspapers  published  in  the  city  of 
Wilmington,  at  least  thirty  days  previous  to  the  first  day 
of  December,  1852,  the  time  appointed  for  the  payment  of 
that  portion  or  instalment  of  the  stock  called  for,  and  that 
the  defendant  neglected  to  pay  the  same  at  the  time  and 
place  appointed  for  that  purpose. 

If  these  facts  are  all  proved  to  your  satisfaction  the  plain- 
tiffs are  entitled  to  your  verdict  for  the  amount  claimed  by 
them,  unless  the  defendant  has  set  up  and  established 
some  legal  defence  which  absolves  him  from  his  liability. 

The  defence  set  up  and  relied  upon  by  the  defendant  is. 
that  since  the  subscription  by  him  to  this  stock,  and  since 
the  organization  of  the  company  as  originally  chartered,  a 
change  has  been  made  in  the  charter  and  in  the  line  and 
eastern  terminus  of  the  road  without  his  assent,  which,  he 
alleges,  releases  and  absolves  him  from  his  liability  to  pay 
the  amount  subscribed  by  him.  That  a  change  lias  been 
made  by  the  Legislature,  on  the  application  of  the  com- 
pany, and  has  been  approved  and  adopted  by  the  stock- 
holders is  true;  but  whether  that  change  is  of  such  a 
character  as  discharges  the  defendant  from  his  liability  to 
pay  the  amount  of  his  subscription  to  the  stock  is  the  ques- 
tion upon  which  this  case  turns,  and  which  we  are  now 


172  SUPEEIOR  COURT. 

called  upon  to  answer,  by  the  announcement  of  our  opinion 
to  you  of  the  law  upon  that  subject, 

"We  must  confess  that  we  have  been  considerably  em- 
barrassed by  the  contrariety  of  opinions  and  seeming  con- 
flict of  decisions  cited,  and  we  are  not  now  entirely  free 
from  doubts;  but  we  have  given  the  subject  all  the  atten- 
tion and  the  fullest  consideration  which  our  limited  time 
and  opportunity  would  allow,  and  will  announce  the  con- 
clusion to  which  it  has  conducted  us. 

Upon  examining  the  authorities  cited  on  behalf  of  the 
defendant,  in  support  of  his  position,  most  of  them  strike 
us  as  having  and  bearing  but  little  analogy  to  the  case 
now  under  consideration. 

The  case  of  The  Hartford  and  New  Haven  Railroad  Com- 
pany v.  Crossicell,  5  Hill,  does  go  to  the  extent  that  such 
extensive  and  radical  changes  may  be  made  in  the  road, 
or  work  of  improvement,  as  will  operate  as  a  dissolution 
of  the  contract  of  a  subscriber  to  stock ;  but  it  also  recog- 
nizes the  principle  that  such  alterations  may  be  made,  in 
the  language  of  the  learned  judge  who  delivered  the 
opinion  of  the  Court,  as  are  clearly  enough  beneficial,  or 
at  least  not  prejudicial  to  the  interest  of  the  party. 

So,  too,  in  the  case  cited  from  13  Illinois  R.,  it  is  con- 
ceded that  such  changes  or  amendments  may  be  made  to 
the  charter  as  may  be  considered  by  the  Legislature  useful 
to  the  public,  and  by  the  company  beneficial  to  them,  if 
they  do  not  divert  its  property  to  new  and  different  pur- 
poses, and  where  the  work  is  still  designed  to  accommo- 
date the  same  line  of  travel  and  transportation,  and  to  pro- 
mote the  same  general  good,  without  absolving  the  sub- 
scribers from  their  engagements. 

The  case  in  1  New  Hampshire  Reports,  and  those  in  8  and 
10  Massachusetts  Reports,  are  also  relied  upon  ;  but  those 
eases  are  essentially  different  from  the  one  we  are  now 
considering;  and  although  it  is  somewhat  difficult  to  deter- 
mine what  they  really  do  decide,  they  were  doubtless  eases 
where  the  liability  of  the  subscribers  was  increased.  The 
case  in  New  Hampshire  was  a  subscription  for  one  share 


DELAWARE  RAILROAD  COMPANY  v.  TIIARP.     173 

of  stock,  and  the  contract  was  to  pay  all  assessments  a  ma- 
jority of  the  company  might  think  necessary  to  raise  for 
improving  the  navigation  of  a  river  within  certain  limits, 
and  for  the  purchase  of  six  acres  of  land  for  the  prosecu- 
tion of  the  improvement.  The  assessment  on  that  share 
was  for  the  purchase  of  one  hundred  acres  of  land,  where- 
by the  liability  of  the  subscriber  was  increased. 

And  so  in  the  cases  cited  from  8  and  10  Massachusetts 
Reports,  the  undertaking  was  in  the  one  case  to  pay  assess- 
ments on  one  share  of  stock,  to  make  a  turnpike,  the  cost 
of  which  was  estimated  at  §40,000,  and  that  there  should 
be  400  shares,  being  §100  per  share.  Two  assessments 
were  made,  to  the  amount  of  $240.  A  change  was  made 
in  the  charter  by  the  Legislature,  on  the  application  of  the 
company,  an  the  direction  of  the  road  was  altered.  The 
defendant  supposed,  and  very  naturally  thought,  he  could 
not  in  any  possible  event  be  held  liable  for  assessments 
amounting  to  more  than  §100  on  each  share,  for  that  was 
the  stipulated  contract  between  him  and  the  company 
when  he  subscribed,  and  he  was  therefore  absolved  from 
his  liability  by  such  a  change  as  necessarily  increased  his 
liability  from  §200  to  §240. 

The  facts  and  rulings  are  the  same,  or  very  similar,  in 
the  case  in  10  Massachusetts. 

On  the  part  of  the  plaintiffs  several  authorities  have  been 
cited  in  support  of  the  principle  contended  for  by  them ; 
that  is  to  say,  that  a  change  made  in  the  charter  by  the 
Legislature,  without  impairing  the  contract  between  the 
subscribers  and  the  company,  does  not  release  subscribers 
to  the  stock. 

The  first  of  these  is  the  case  cited  from  2  Russell  ,f 
Mill.,  W"re  v.  The  Grand  Junction  Water-works  Company. 
Ware,  the  defendant,  objected  first  to  the  expenditure  of 
the  money  of  the  corporation  for  the  procurement  of  an 
amendment  to  the  charter;  and  also  to  the  application  to 
Parliament  for  such  amendment. 

Lord  Brougham  held  that  one  of  the  incidents  of  a  cor- 
poration is  to  apply  to  Parliament  for  an  amendment   of 


174  SUPERIOR  COURT. 

its  charter.  And  the  members  of  the  corporation  entered 
into  it  with  that  contingency  ;  and  if  they  intended  to  enter 
into  it  with  any  reservation,  they  ought  so  to  have  stipu- 
lated. 

The  next  of  these  cases  is  that  cited  from  2  Watts  Sc  Ser- 
geant. In  that  case  the  Court  held  that  the  extension  or 
enlargement  of  the  powers  or  privileges  of  a  corporation, 
though  it  may  increase  the  expenses  or  moneys,  does  not 
change  the  contract  of  the  corporator.  His  contract  was 
simply  to  pay  to  the  company  his  subscription ;  and  to 
become,  in  consideration  thereof,  a  holder  of  stock  to  that 
amount ;  that,  as  a  corporator,  he  entered  into  the  contract 
subject  to  the  right  of  the  company  to  apply  to  the  Legis- 
lature to  change  the  charter  for  the  public  good,  which  is 
the  object  of  all  corporations. 

The  plaintiffs  also  cited  the  case  of  The  Middle  and 
Great  Western  Railroad  Company  v.  Gordon,  in  16  Meeson  Sc 
Welsby  ;  The  Troy  and  Rutland  Railroad  Company  v.  Kerr, 
17  Barbour's  Reports  ;  and  the  case  in  6  Watts  <f  Sergeant. 

The  grant  of  acts  of  incorporation  by  the  State  is  pro- 
fessedly for  the  public  good  generally ;  and  there  is  an 
inherent  right  in  the  Legislature  to  amend,  change,  or 
alter  the  charter  of  any  incorporated  company  with  its 
consent.  Those  who  become  corporators  do  so  with  that 
contingency,  and  their  engagements  are  therefore  subject 
to  it.  If  a  subscriber  to  stock  enters  into  the  corporation 
generally  without  specific  stipulations,  he  is  bound  and 
concluded  by  the  action  of  a  majority  of  the  corporation  ; 
and  if  the  Legislature  change  or  amend  the  charter  on  the 
application  of  the  company,  and  with  its  assent  and  ap- 
proval, without  thereby  impairing  the  contract  of  the  cor- 
porators, in  the  mode  we  have  stated,  they  will  not  be 
thereby  discharged  from  their  liability  as  subscribers  to 
stock.  Such  a  change  as  would  not  increase  the  liability 
of  the  party  to  pay  more  money  than  he  subscribed  ori- 
ginally to  pay,  but  merely  affects  his  individual  or  personal 
interest,  as  that  the  road  did  not  pass  by  his  door,  or  through 
his  farm,  as  he  may  have   desired  or  expected,  is   not  such 


DELAWARE  RAILROAD  COMPANY  v.  THARP.     175 

a  change  as  will  absolve  the  party  from  his  obligation  to 
pay  his  subscription.  The  object  of  corporations  being 
for  the  public  good,  and  not  private  interest  or  advantage. 
The  contract  of  the  defendant  with  the  Delaware  Rail- 
road Company  was  to  pay  for  forty  shares  of  the  capital 
stock  of  the  Company  at  $25  per  share,  in  consideration  oi* 
being  the  holder  of  that  number  of  shares.  That  he  agreed 
and  promised  to  pay  the  same  to  the  president  and  direc- 
tors of  the  compauy,  in  such  manner  and  proportions  and 
at-  such  times  as  shall  be  determined  and  called  for  by 
them.  By  the  terms  of  his  contract  he  is  bound.  K  he 
intended  to  subscribe  on  the  condition  that  the  road  should 
not  be  changed  in  its  eastern  terminus  or  otherwise,  he 
ought  so  to  have  stipulated ;  not  having  done  so,  he  can- 
not now  shield  himself  under  the  defence  set  up  by  him, 
and  upon  the  ground  that  the  road  has  since  been  changed 
from  its  terminus  at  Dona  River.  Having  subscribed 
under  the  general  terms  of  the  charter,  with  an  inherent 
right  in  the  Legislature  to  change  it  for  the  public  good, 
with  the  consent  of  the  corporation,  and  the  company 
having  applied  for  and  accepted  the  amendment,  he,  as  a 
corporator,  is  concluded  by  the  action  of  the  majority  of 
the  company,  although  he  may  not  as  an  individual  cor- 
porator have  assented  to  it. 

Verdict  for  plaintiffs. 

iV.  P.  Smithers  and  J.  A.  Bayard,  for  plaintiffs. 

W.  Saulsbury  and  C.  S.  Layton,  for  defendant. 


176  SUPERIOR  COURT. 


Joseph  B.  Nickerson  v.  Isaac  Hazel. 


A  bond  with  warrant  of  attorney  to  confess  judgment,  given  to  one  credi- 
tor alone,  to  secure  a  debt  due  to  him,  and  also  debts  due  to  other 
creditors  not  named  in  it,  if  given  with  their  knowledge  and  consent, 
is  valid  and  binding;  and  when  collected  by  him  the  creditors  not 
named  in  the  bond  may  sue  for  and  recover  their  respective  claims 
from  him. 


Petition  by  Nickerson  to  take  money  out  of  Court, 
brought  in  by  the  sheriff  upon  a  sale  by  him  on  execution 
of  the  goods  of  Hazel.  Nickerson  recovered  a  judgment 
by  confession  against  Hazel  for  $1550,  on  the  23d  of  April, 
1855,  and  on  the  next  day  sued  out  an  execution  upon  it 
against  his  goods.  On  the  10th  of  April  the  firms  of 
Brown,  Feederack  &  Kinkle  and  Ross,  Shot  &  Co.  brought 
each  a  suit  against  Hazel,  and  filed  their  affidavits  of  their 
respective  causes  of  action,  and  obtained  judgments  by 
confession  against  him  on  the  28th  of  April ;  the  former 
for  $230  and  the  latter  for  $194.40,  and  the  same  day  issued 
executions  against  his  goods.  The  ground  of  objection  to 
Nickerson's  application  was  that  there  was  no  such  sum 
as  $1550  due  to  him  from  Hazel  at  the  time  of  the  entry 
of  his  judgment  and  the  issue  and  levy  of  his  execution 
upon  the  goods. 

The  proof  was  that  at  the  time  when  the  bond  was  exe- 
cuted, on  which  the  judgment  was  entered,  Hazel  was  in- 
debted to  Nickerson  in  his  own  right  $960,  and  the  balance 
was  due  to  other  parties  with  whom  Nickerson  had  agreed 
to  account  for  the  balance  to  them,  by  taking  the  bond  in 
this  way,  for  the  whole  amount  in  his  own  name. 

Comegys,  for  the  other  execution  creditors,  contended 
that  it  should  be  clearly  shown  that  the  other  parties,  for 
whose  benefit  the  bond  was  alleged  to  have  been  taken  in 
part  in  the  name  of  Nickerson,  authorized  it  to  be  taken 
by  him  for  their  debts,  and  surrendered  or  released  to 


NICKERSON  v.  HAZEL.  177 


Hazel  their  original  debts  or  securities,  and  became  actual 
parties  to  the  bond  by  privity  at  least ;  but  there  was  no 
evidence  before  the  Court  that  they  had  ever  receipted  for, 
relinquished,  or  released  their  original  demands  against 
him,  and  there  was  not  sufficient  proof  that  they  even  au- 
thorized Nickerson  to  secure  their  debts  by  taking  a  bond 
in  his  own  name,  but  in  part  for  them.  Such  a  transac- 
tion would  not  create  a  trust  in  favor  of  such  creditors, 
and  if  Nickerson  were  to  receive  the  money,  as  they  are 
not  named  in  the  bond,  but  the  same  purports  to  be  for 
his  own  use  and  benefit  exclusively,  they  could  not  re- 
cover the  money  from  him.  Walters  et  al.  v.  Comly,  3 
Harr.  117. 

Fisher:  The  case  just  cited  on  the  other  side  was  not 
like  the  present,  for  it  was  evident  in  that  case  that  the 
creditors  secured  by  the  bond  knew  absolutely  nothing  of 
it,  and  never  authorized  it.  In  the  present  case,  also, 
there  was  no  proof  of  failing  circumstances  at  the  time  on 
the  part  of  Hazel.  His  property  was  sufficient  to  pay  all 
his  debts,  and  would  have  satisfied  them  if  it  had  not  been 
sacrificed  by  the  urgent  pressure  and  sale  of  the  claimants 
and  contestants.  The  only  question  in  the  case,  therefore, 
was,  did  the  other  creditors  for  whose  benefit  the  bond  was 
taken  in  part  by  Nickerson,  authorize  their  claims  to  be 
included  in  it  for  the  purpose  of  securing  them  against 
Hazel  ?  If  so,  then  they  could  recover  them  from  Nicker- 
son when  he  received  the  money;  and  on  that  point  the 
testimony  was  clear  and  sufficient. 

By  the  Court:  The  claimants  under  the  first  judgment, 
that  is  to  say,  the  judgment  in  favor  of  Nickerson,  the  pe- 
titioner, are  entitled  to  the  money  brought  into  court  by 
the  sheriff  on  the  executions.  The  parties  interested  with 
him  in  the  bond  had  notice  of  the  arrangement,  and  con- 
curred in  the  step  which  he  thus  took  to  secure  their  debts 
as  well  as  his  own  against  Hazel,  as  he  had  agreed  to  do; 
and   they  would    have   their    action   against   him    tor   the 


178  SUPERIOR  COURT. 

amount  of  their  respective  demands  on  his  collecting  the 
money  from  Hazel,  and  could  recover  the  same  from  him. 
It  is  distinguishable  from  the  case  of  Walters  et  al.  v.  Comly, 
3  Harr.  117.  In  that  case  the  creditors,  whose  claims 
were  included  in  the  bond,  had  no  notice  of  it.  The  bond 
was  executed  by  a  debtor  in  failing  circumstances  to  a 
third  person,  without  the  knowledge  of  the  creditors  whose 
claims  were  embraced  in  it,  or  any  communication  with 
them  on  the  subject,  and  the  Court  held  that  in  such  a 
transaction  the  bond  did  not  create  a  trust  in  favor  of  such 
creditors,  but  was  revocable  at  the  will  of  the  obligor,  and 
was  consequently  void  as  to  such  creditors,  and  the  amount 
of  their  demands  covered  by  it.  But  in  this  case  the  cre- 
ditors had  knowledge  of  the  proceedings,  and  sanctioned 
the  transaction,  and  consequently  the  bond  was  valid  and 
binding,  and  not  revocable  or  void  as  in  that  instance. 


Doe  on  the  demise  of  Elihu  Jefferson  v.  John  Howell, 
tenant  in  possession. 

An  action  of  ejectment  cannot  be  maintained  on  possession  alone  short  of 
twenty  years  against  a  mere  trespasser,  who  enters  without  any  color 
of  title  and  ousts  the  party  in  possession. 

A  recital  in  a  deed  that  the  grantor  had  taken,  in  the  conveyance  of  the 
land  to  him,  only  fourteen  acres,  and  no  more,  of  the  premises  in  dis- 
pute, is  evidence  in  itself  of  the  fact  admitted  in  the  recital,  and,  as 
such,  concludes  the  parties  to  the  deed,  and  all  deriving  title  under  it, 
from  claiming  any  more  of  the  land. 

This  was  an  action  of  ejectment,  to  recover  certain 
lands  in  Appoquinimink  Hundred,  New  Castle  County,  in 
which  the  case  turned  chiefly  on  the  question  of  possession. 
Trial  and  verdict  for  defendant.  The  plaintiff  having  ob- 
tained a  rule  to  show  cause  wherefore  a  new  trial  should 
not  be  in-anted  on  the  following  grounds :  first,  that  the 


DOE  d.  JEFFERSON  v.  HOWELL.  17(J 

Court  erred  in  charging  the  jury  that  no  person  was  enti- 
tled to  recover  land  in  an  action  of  ejectment  on  any  pos- 
session merely,  short  of  twenty  years ;  and  secondly,  be- 
cause the  Court  also  erred  in  charging  the  jury  that  the 
plaintiff  was  estopped  or  concluded  by  the  recital  contained 
in  the  deed  from  Seth  King  to  John  Lowber,  through  and 
from  whom  in  the  chain  of  paper  title  exhibited  and  ad- 
duced by  him  he  derived  his  title  to  the  premises  in  dis- 
pute, from  claiming,  by  virtue  of  that  deed,  more  than  the 
fourteen  acres  of  land  stated  in  that  recital  to  be  all  the 
land  which  the  grantors  of  Seth  King,  by  their  deed  of 
bargain  and  sale,  conveyed  to  him,  now  showed  cause. 

D.  M.  Bales,  for  the  plaintiff:  It  was  undoubtedly  true 
that  no  one  could  acquire  a  right  to  land  as  against  the 
legal,  rightful  owner  of  it,  by  any  possession  merely  short 
of  a  continuous  adverse  possession  of  twenty  years.  But 
where  a  party,  without  any  other  right  or  claim  of  title, 
had  been  in  the  actual,  peaceable,  and  quiet  possession  of 
land  for  a  period  of  less  than  twenty  years,  was  ousted  and 
dispossessed  by  a  mere  trespasser  and  wrong-doer  without 
any  color  of  title,  he  may  recover  the  premises  in  an  action 
of  ejectment  against  such  a  trespasser  on  that  possession 
merely;  for  the  object  of  the  action  of  ejectment  is  to  re- 
cover the  possession  of  land ;  and  the  mere  possession 
without  reference  to  its  duration  in  point  of  time,  and  with 
or  without  color  of  title,  was  available  in  such  an  action, 
to  entitle  the  party  to  recover  the  possession  as  against  a 
mere  trespasser  without  color  of  title,  unless  the  disseisor 
had  retained  the  possession  for  twenty  years  after  the 
ouster,  or  had  himself  been  in  the  peaceable  possession  of 
it  previous  to  the  disseisin  of  the  plaintiff;  because  the 
law  presumed  that,  being  in  the  peaceable  possession  of  it, 
he  was  in  the  rightful  possession  of  it,  and  was  pri?na  facie 
the  lawful  owner  of  it.  But.  if  the  former  possessor  relin- 
quishes the  possession  and  the  defendant  enters  peaceably, 
it  will  not  avail  the  plaintiff,  and  he  cannot  recover;  for  in 
that  case  the  principle  with  which  he  started  would  not 


180  SUPERIOE  COURT. 

apply,  because  it  only  applied  in  a  case  of  actual  ouster  by 
an  actual  trespasser  who  entered  without  any  color  of  title 
whatever;  and  the  reason  of  the  principle  and  distinction 
was  that  ejectment  was  a  possessory  action,  and  for  the 
recovery  of  the  possession  merely.  Smith  v.  Lorillard,  10 
Johns.  356 ;  Oro.  Eliz.  438 ;  2  Saund.  110 ;  14  Eng.  C.  L. 
Rep.  54;  41  Eng.  C.  L.  Rep.  23;  3  Phil.  Ev.  457,  484; 
Ang.  on  Lim.  397 ;  5  Wheat.  241 ;  5  Curt.  Cond.  Rep.  241 ; 
28  Eng.  C.  L.  Rep.  54;  3  Man.  $  Ryl.  111. 

On  the  other  ground  he  did  not  mean  to  rely  on  any 
technical  objection  merely  to  the  charge  in  relation  to 
what  was  said  as  to  the  effect  of  the  recital  in  the  deed 
from  King  to  Lowber;  but  considering  it  in  the  light  of 
an  admission  merely,  and  not  as  an  estoppel,  he  contended 
that  an  admission  in  the  recital  in  a  deed  could  only  be 
conclusive  as  to  the  subject-matter  of  the  conveyance,  and 
not  as  to  anything  else  which  happened  to  be  stated  In  it. 
As  for  instance  any  admission  in  the  deed  in  regard  to  the 
fourteen  acres  conveyed  by  it  would  be  conclusive  as  to 
that,  but  no  statement  as  to  anything  outside  of  the  deed 
would  be  so.  But  such  admissions  and  recitals  bind  only 
the  parties  to  the  deed  and  their  privies  in  estate,  in  blood, 
or  in  law ;  and  none  but  those  who  claim  after  the  deed  is 
made,  and  not  strangers  or  those  who  claim  by  a  title  para- 
mount to  the  deed,  were  bound  by  any  admissions  or  re- 
citals which  it  contained.  Now  the  defendant  did  not  claim 
title  to  the  premises  in  question  under  King  or  Lowber, 
and  there  was  no  privity  between  him  and  them  in  relation 
to  it  in  any  sense,  and  he  therefore  could  not  be  bound  by 
anything  recited  or  admitted  in  the  deed  from  the  former 
to  the  latter;  and  if  he  was  not  bound  by  it,  then  the  plain- 
tiff could  not  be  bound  or  concluded  by  it  from  setting  up 
any  claim  he  might  see  proper  to  assert  to  the  other  part 
of  the  twenty-eight  acres  against  the  defendant,  because 
the  admission  or  recital  relied  on  as  such  must  be  mutual 
and  equally  binding  on  both  parties.  Estoppels  were  odious 
and  not  to  be  encouraged  in  law,  and  the  principle  and 
reason  of  the  rule  would  apply  with  the  same  force  if  the 


DOE  d.  JEFFERSON  v.  HOWELL.  181 

recital  was  relied  on  as  the  admission  of  a  fact  which  would 
conclude  the  plaintiff  from  claiming  more  than  the  four- 
teen acres  against  the  defendant  or  any  other  person.  1 
Greenl.  Ev.,  sees.  23,  204 ;  4  Phil.  Ev.  453 ;  1  Salk.  385 ;  4 
Peters'  Pep.  83;  1  Phil.  Ev.  367;  1  Pus.  Ch.  Pep.  601; 
Coke,  Lit.  352 ;  2  Johns.  Pep.  382 ;  17  Mass.  432 ;  2  Pick. 
425;  4  Binney,  231;  22  Eng.  C.  L.  P.  73;  27  Eng.  C.  L. 
P.  289;  32^.  C.  L.  P.  42. 

Podney,  for  the  defendant :  The  question  in  regard  to 
the  recital  in  the  deed  from  King  to  Lowber,  which  the 
Court  in  the  charge  left  to  the  jury,  was  this:  What  was 
the  land  conveyed  to  King  by  the  deed  of  bargain  and  sale 
from  Howell  and  Shelton  and  his  wife  to  him,  and  which 
he  afterwards  sold  and  conveyed  to  Lowber?  And  the 
Court,  after  propounding  that  question  to  the  jury,  very 
properly  instructed  them  that  if  the  recital  contained  in 
the  deed  from  King  to  Lowber  stated  that  King  had  taken 
under  the  conveyance  to  him  from  Howell,  Shelton,  and 
wife,  but  the  fourteen  acres  of  the  forty-two  acres  claimed 
by  the  plaintiff,  by  virtue  of  the  conveyances  from  those 
parties  to  King,  and  from  King  to  Lowber,  through  whom 
the  plaintiff  derived  his  title,  then  it  would  amount  to  an 
admission  as  to  the  quantity  of  land  conveyed  and  intended 
to  be  conveyed  to  the  latter  by  the  former,  which  would 
conclude  them,  and  all  claiming  under  them,  from  setting 
up  any  title  to  the  twenty-eight  acres,  the  residue  of  the 
forty-two  acres,  under  or  by  virtue  of  that  deed.  For  the 
recital  of  a  fact  like  that  in  a  deed  was  conclusive  evidence 
of  the  fact  in  itself;  and  any  party  or  privy  to  the  deed 
and  the  estate  taken  under  it,  was  precluded  and  estopped 
from  contradicting  or  denying  it.  2  Stark.  Ev.  17,  704;  1 
Stark.  Ev.  95;  44  Law  Libr.  479.  On  that  point  the  ques- 
tion before  the  jury  was,  whether  King  took  the  whole  of 
the  forty-two  acres  by  the  deed  of  Howell  and  others  to 
him;  and  whether  Lowber  took  the  same  from  him  or 
only  the  fourteen  acres,  a  part  of  it?  And  he  contended 
that  it  was  recited  in  the  deed  from  Kino;  to  Lowber  that 


182  SUPERIOR  COURT. 

King  took  but  the  fourteen  acres ;  and  if  so,  the  plaintiff 
was  concluded  by  it  from  setting  up  any  claim  to  the 
twenty-eight  acres,  and  the  Court  in  the  charge  sustained 
the  position  which  he  had  assumed  in  his  argument  before 
them. 

On  the  other  ground  of  exception  to  the  charge  of  the 
Court  the  counsel  for  the  plaintiff  had  insisted  that,  on  a 
mere  possession  of  less  than  twenty  years,  without  any 
other  claim  or  show  of  right  or  title,  a  party  may  recover 
in  an  action  of  ejectment  as  against  a  mere  trespasser  or 
wrong-doer,  who  ousts  or  dispossesses  him  without  any 
color  of  title,  and  he  had  cited  several  authorities  to  sus- 
tain that  principle ;  but  it  had  been  ruled  otherwise  in  this 
State,  and  that,  too,  after  the  citation  of  some  of  the  same 
cases,  and  particularly  from  New  York,  which  had  now 
been  produced.  In  the  case  of  Lore's  Lessee  v.  Hill,  3 
Harr.  530,  the  contrary  of  this  was  ruled  as  the  law  in  this 
State ;  that  the  plaintiff  in  ejectment  must  recover  on  the 
strength  of  his  own  title ;  that  there  could  be  no  weighing 
of  titles  between  him  and  the  defendant,  whose  possession 
was  good  enough  for  him  until  the  plaintiff  showed  a  valid 
legal  title  in  himself.  That,  added  the  Court,  was  the 
general  rule,  and  had  been  regarded  as  the  settled  law  of 
this  State,  and  it  was  now  too  late  to  question  or  dis- 
turb it. 

By  the  Court:  According  to  the  law,  as  recognized  by 
the  courts  of  this  State,  an  action  of  ejectment  cannot  be 
maintained  on  the  ground  of  possession  alone  short  of 
twenty  years,  against  a  mere  trespasser,  who  enters  without 
any  color  or  claim  of  title  and  ousts  the  party  in  posses- 
sion, although  there  are  decisions  to  the  contrary  in  some 
of  the  other  States,  and  particularly  in  New  York.  The 
general  rule  on  the  subject  was,  that  the  plaintiff,  in  an 
action  of  ejectment,  must  establish  a  legal  title  in  himself 
to  the  premises,  and  must  recover  on  the  strength  of  that 
title,  and  not  on  the  weakness  or  insufficiency  of  the  de- 
fendant's; and  no  possessory  right  merely,  short  of  twenty 


DAVIS  v.  ROGERS.  183 

years'  uninterrupted  possession,  was  sufficient  here  for  that 
purpose.  Such  had  always  been  the  ruling  and  determi- 
nation of  the  courts  in  this  State. 

In  regard  to  the  other  ground  of  objection  to  the  charge, 
the  Court  submitted  the  point  made  as  to  the  effect  of  the 
recital  in  the  deed  from  King  to  Lowber,  to  the  jury,  sub- 
stantially as  stated  by  the  counsel  for  the  defendant, — that 
it  was  in  itself  evidence  of  the  fact  recited  in  the  deed  in 
the  nature  of  an  admission  by  both  parties  to  it,  and  as 
such  would  conclude  the  defendant,  so  far  as  his  claim  to 
the  land  depended  on  it  and  he  derived  his  title  under  that 
conveyance,  from  claiming  anything  contrary  to  the  tenor 
of  it.  We  are,  therefore,  still  of  opinion  that  the  views  of 
the  Court,  as  then  expressed  on  both  points,  are  correct, 
and  the  rule  must  consequently  be  discharged  and  a  new 
trial  refused. 


Sally  B.  Davis  and  the  heirs  at  law  of  Samuel  B.  Davis, 
deceased,  v.  William  II.  Rogers,  Executor  of  Samuel 
B.  Davis,  deceased. 

After  trial,  and  the  verdict  of  a  jury  against  the  validity  of  a  will  on 
an  issue  of  devisavit  vel  non,  ordered  by  the  Register,  he  cannot  order  a 
second  issue  upon  it. 

An  appeal  from  the  order  of  the  Register  directing  an  issue  of  devisavit 
vel  non  to  be  tried  before  a  jury  at  the  bar  of  the  Court,  is  a  supersedeas 
of  all  further  proceedings  thereon,  until  the  appeal  is  determined. 

On  appeal  from  the  order  of  the  Register  awarding  a  second  issue  of  deri- 
savit  vel  non,  after  trial  and  the  verdict  of  a  jury  against  the  validity  of 
the  will  on  -a  former  issue  ordered  by  him,  the  Court  will  not  enter  a 
final  decree  against  the  will,  or  such  final  decree  as  the  Register  should 
have  made  under  the  circumstances ;  but  will  reverse  the  order  and  re- 
mand the  case  to  be  further  proceeded  in  by  him. 

There  were  two  eases  on  the  record  of  the  Court  be- 
tween these  parties.  The  former  was  a  second  issue  of 
devisavit-  vel  non,  ordered  and  sent  up  by  the  Register  of 
WiHs  for  New  Castle  County,  to  try  the  validity  of  a  paper 


184  SUPERIOR  COURT. 

writing  purporting  to  be  the  last  will  and  testament  of 
Samuel  B.  Davis,  deceased  (a  previous  issue  of  the  same 
kind,  on  the  same  paper  writing,  having  been  awarded 
and  sent  up  by  him  and  tried  at  the  preceding  term  of  the 
Court,  and  which  resulted  in  a  verdict  against  the  validity 
of  it  as  the  last  will  and  testament  of  the  deceased) ;  and 
the  latter  was  an  appeal  from  the  order  and  decree  of  the 
register  awarding  the  second  issue. 

William  H.  Rogers  moved  the  Court  for  leave  to  strike 
his  name  from  the  record  of  both  cases.  He  appeared,  he 
said,  before  the  Court  not  as  counsel  for  any  one,  but  on 
his  own  behalf  as  an  individual,  and  respectfully  submitted 
this  motion  on  the  ground  that  he  had  been  improperly 
named  as  one  of  the  parties  in  the  cases.  The  letters  tes- 
tamentary heretofore  granted  to  him  on  what  purported  to 
be  the  last  will  and  testament  of  the  deceased  had  been 
revoked,  and  an  administrator  pendente  lite  had  been  ap- 
pointed, and  he  now  utterly  disclaimed  having  any  con- 
nection or  anything  further  to  do  with  the  cases,  and  de- 
manded as  a  matter  of  right  that  his  name  should  be 
stricken  from  them.  He  was  happy  to  say  that,  in  his 
own  judgment,  and  in  the  judgment  of  his  friends,  whose 
opinion  he  had  taken  on  the  subject,  he  had  already  dis- 
charged his  duty  to  the  deceased,  and  had  done  all  that  it 
was  incumbent  upon  him  to  do  in  the  relation  in  which  he 
then  stood  to  him,  and  in  connection  with  the  paper  pur- 
porting to  be  his  will,  and  it  was  neither  his  wish  nor  his 
duty,  either  as  a  party  or  as  counsel,  to  have  anything  fur- 
ther to  do  with  the  matter.  lie  did  not  know  what  view 
the  Court  might  take  of  his  applieation,  but  he  would  not 
try  them,  ami  he  should  respectfully  protest  against  the 
Court's  proceeding  to  hear  and  try  the  eases  in  his  name 
as  one  of  the  parties  to  the  record;  tor  having  been  re- 
moved from  the  executorship,  the  eases  were  now  before 
the  Court  precisely  as  if  they  had  abated  by  his  natural 
death,  since  the  issue  was  ordered  and  the  appeal  there- 
from was  granted,     lie  hoped,  however,  the  Court  would 


DAVIS  v.  ROGERS.  185 

concur  in  the  propriety  of  his  application,  under  the  cir- 
cumstances, and  grant  the  motion ;  but  if  it  should  be  of 
a  contrary  opinion,  and  differ  with  hiin  as  to  his  right  to 
abandon  and  withdraw  from  the  cases,  he  would  then  say, 
without  intending  the  slightest  disrespect  to  the  Court,  it 
must  proceed  to  try  them  without  the  sanction  of  his  pre- 
sence. And  without  waiting  for  any  reply  from  the  counsel 
on  the  other  side,  he  left  the  court  room. 

D.  M.  Bales,  for  the  appellants,  now  asked  the  Court  to 
render  a  final  decree  in  the  latter  case,  on  the  appeal  in 
favor  of  the  appellants.  On  the  certified  return  from  this 
Court  to  the  register  of  the  verdict  of  the  jury  rendered  at 
the  last  term,  on  the  issue  of  devisavit  vel  non  against  the 
validity  of  the  will  of  Samuel  B.  Davis,  he  called  upon 
that  officer  to  enter  a  final  decree  against  the  will,  and  to 
revoke  the  letters  testamentary  granted  thereon  to  the 
executor  named  in  the  paper,  when  the  proceeding  was 
arrested  by  the  presentation  of  a  petition  to  the  register 
for  another  issue  of  devisavit  vel  non  on  the  same  paper,  on 
which  the  register  made  an  order  awarding  a  second  issue, 
and  from  that  order  this  appeal  was  taken.  The  respon- 
dent in  that  appeal  from  the  order  asked  and  obtained  by 
him,  it  seems  now  refuses  to  appear  and  respond  to  it  in 
this  Court,  on  the  ground  that  he  has  been  removed  from 
the  executorship  and  is  no  longer  a  party  to  the  second 
issue  ordered  upon  his  petition  and  sent  up  here  in  his 
name,  or  to  the  appeal  which  we  have  taken  to  this  Court 
from  that  order  made  in  a  proceeding  voluntarily  insti- 
tuted \fy  him,  in  his  name,  and  as  the  only  party  on  that 
side  to  it.  But  being  the  party  respondent,  and  the  only 
partv  respondent  to  an  appeal  thus  taken  from  an  order  or 
decree  in  his  favor,  asked  for  and  obtained  by  him  before  the 
register,  he  cannot  be  allowed  to  defeat  it,  and  deprive  the 
other  parties  of  the  benefit  of  their  appeal  guaranteed  to 
them  in  such  cases  by  the  Constitution  in  this  manner,  by 
omitting,  or  refusing  to  appear  and  answer  to  it.  For,  if 
this  could  be  tolerated,  then  would  the  right,  as  well  as  the 

13 


186  SUPERIOR  COURT. 


benefit  of  appeal  in  effect  be  entirely  dependent  on  tbe 
will  and  pleasure  of  the  respondent,  and  he  might  defeat 
the  prosecution  of  it  by  such  a  step  as  tins  whenever  it 
suited  his  purpose  to  stay  all  further  proceedings,  in  this 
manner,  on  an  order  or  decree  below  rendered  in  his  own 
favor.  The  appellants  were  therefore  entitled,  on  the  re- 
fusal of  the  respondent  to  appear  and  answer  to  it,  to  a 
final  decree  on  the  appeal  in  this  Court  in  their  favor.  We 
have  no  statutory  provision  in  appeals  of  this  nature  to 
enforce  the  appearance  and  answer,  or  plea  of  the  respon- 
dent, or  anything  more  than  the  general  provision  of  the 
Constitution,  which  gives  the  appeal  simply  in  such  cases; 
and  the  Court  must  therefore  dispose  of  it  in  such  manner 
as  may  seem  legal,  just  and  proper  under  the  circum- 
stances. An  appeal  differs  from  a  writ  of  error,  which 
does  not  remove  the  case  entirely  from  the  court  below, 
but  simply  the  proceedings  of  the  court  below  in  the  case, 
for  the  correction  of  errors,  which  is  afterwards  remanded 
to  the  court  below  from  whence  it  came.  But  an  appeal 
has  the  effect  to  remove  the  case,  with  all  its  rights  and 
incidents,  to  the  court  above,  and  it  is  then  to  be  regarded 
and  prosecuted  in  all  respects  as  if  the  case  had  been  insti- 
tuted originally  in  the  appellate  court,  and  the  appellate 
tribunal  will  consequently  proceed  with  it  to  final  judg- 
ment, just  as  if  the  case  had  been  originally  commenced 
in  that  court.  Reed  v.  Vanderheyden,  5  Coir.  710;  1  Hopk. 
Chanc.  Hep.  412;  Barker  v.  Spicer,  4  JIarr.  348;  Van  Wick 
v.  Ally,  1  Hopk.  Chanc.  Rep.  552.  A  decree  on  an  appeal 
from  an  interlocutory  order  may  be  final  in  the  ease,  ac- 
cording to  the  nature  and  incidents  of  the  interlocutory 
order,  and  it  had  been  expressly  ruled  that  on  appeal  from 
such  iin  order,  awarding  an  issue,  the  court  of  appeal  will 
proceed  to  hear  and  dispose  of  the  case  finally,  on  all  the 
facts  and  merits  involved  in  it.  3  JJanl.  Chanc.  Prac  303; 
1  Johns,  (h.  436;  4  Brown's  Pari.  Co.  144;  Ibid.  181  ;  [bid. 
660.  In  the  last  case  cited,  which  was  more  analogous  to 
the  case  before  the  Court,  and  which  was  an  appeal  from 
an  order  awarding  an  issue,  and  which  had  proceeded  no 


DAVIS  v.  EOGERS.  187 

further  in  the  court  below,  the  House  of  Lords  sustained 
the  appeal  and  directed  a  final  decree  to  be  entered  in  the 
case  against  the  order  for  the  issue,  and  that  the  alterna- 
tive proceedings  be  confirmed.  From  this  case  it  would 
therefore  appear  that  where  there  was  sufficient  matter 
apparent  on  the  record  to  sustain  it,  the  decree  on  the  ap- 
peal will  be  final  in  the  case.  4  Bro.  Pari.  Ca.  144,  708 ; 
5  Bro.  Pari.  tix.  429,  446;  3  Munf.  Rep.  115  ;  2  Call's  Pep. 
495 ;  2  Henn.  £  Munf.  Rep.  108 ;  3  Wash.  Rep.  135. 

Having  thus  shown  that  this  Court,  sitting  as  an  appel- 
late court,  has  the  power  to  enter  a  final  decree  in  the 
case,  the  next  question  to  be  considered  was,  as  the  Te- 
spondent  had  stated  personally  to  the  Court,  without  ap- 
pearing, that  he  declined  to  appear  and  defend  the  appeal, 
what  kind  of  a  decree  or  final  disposition  was  to  be  made 
of  the  case  by  this  tribunal  ?  The  issue  of  devisavit  vel  non 
ordered  from  below,  and  now  on  the  record  here,  could 
not  be  tried,  if  for  no  other  reason,  because  there  was  no 
party  to  maintain  the  affirmative  of  it,  and  no  one  inte- 
rested to  maintain  it,  and  the  Court,  of  course,  could  not 
appoint  any  one  to  try  it.  He  therefore  apprehended  that 
the  Court,  under  such  circumstances,  could  do  nothing 
more  nor  less  than  to  direct  the  order  below  awarding  the 
second  issue  to  be  vacated  and  stricken  from  the  record, 
and  to  proceed  to  make  a  final  decree  in  the  case  as  it 
stood  before  the  register  and  he  should  have  made  in  the 
case  on  the  return  of  the  verdict  of  the  jury,  as  certified 
from  this  Court  on  the  trial  of  the  first  issue,  against  the 
validity  of  the  will,  and  revoking  the  letters  testamentary 
granted  upon  it.  All  the  parties  interested,  whether  as 
the  widow  and  heirs  or  as  the  devisees  and  legatees  under 
the  will,  were  before  the  court  below  as  parties,  and  were 
now  before  this  Court  as  appellants.  The  respondent  on 
the  record  was  the  only  other  party  interested  under  the 
will,  as  executor  and  trustee,  and  he  had  peremptorily  but 
respectfully  refused  to  appearand  defend  it.  He  could  see 
no  other  course,  therefore,  for  this  Court  to  adopt  under 
the  circumstances. 


188  SUPERIOR  COURT. 

The  Court  considering  the  appeal  from  the  order  of  the 
register,  awarding  the  second  issue  of  devisavit  vel  nori  on 
the  will,  a  supersedeas  of  that  order,  and  that  all  further 
proceedings  thereon  should  have  heen  stayed  and  sus- 
pended until  the  determination  of  the  appeal,  and  that 
such  order  should  not  have  been  made,  afterwards  directed 
the  following  decree  to  be  entered  on  the  appeal :  And 
now,  to  wit,  this  tenth  day  of  November,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-live,  this 
appeal  coming  on  to  be  heard  before  the  Court,  and  the 
said  William  II.  Rogers,  named  as  executor,  as  aforesaid, 
the  respondent,  failing  to  appear  to  answer  the  appeal, 
after  being  duly  summoned  to  do  so,  the  Court  reverse 
the  said  order  of  the  register  directing  the  said  issue  to.be 
tried  before  a  jury,  at  the  bar  of  this  Court;  and  it  is  or- 
dered by  the  Court  that  the  record  and  accompanying  pa- 
pers be  remanded  to  the  register,  that  the  case  may  be 
further  proceeded  in,  &c. 


Daniel  Cann  r.  Charles  II.  Warren. 

The  provisions  of  the  Revised  Code,  p.  379,  abolishing  the  distinction  be- 
tween actions  on  the  case  and  actions  of  trespass  at  common  law,  was 
simply  designed  to  prevent  a  party,  who  had  misconceived  his  form  of 
action  in  either  instance,  from  being  defeated  in  maintaining  it  by  ob- 
jections to  the  form  of  action  merely,  either  on  a  motion  for  a  nonsuit, 
or  by  the  direction  of  the  Court  to  the  jury,  or  in  any  other  way.  based 
on  the  technical  distinctions  existing  between  them  at  common  law; 
hut  was  ii"t  intended  to  abolish  all  di.-ti nations  between  the  actions  in 
their  remits  and  in  all  the  legal  incident.-  and  consequences  attaching 
to  them  r«  sportively  at  common  law. 

Where,  therefore,  the  action  is  on  the  case,  when  at  common  law.  and 
but  for  the  provision  of  the  statute,  it  should  be  in  trespass,  as  where  it 

i-  for  a  direct   and  immediate   injury.  or  trespass  to  land  in  the   po 

-i"n  of  the  plaintiff,  although  it  may  be  maintained,  and  no  objection 
can  be  taken  to  it  merely  on  account  of  the  form  of  the  action,  it  must 
.-till  be  regarded  in  effect  and  in  the  application  of  the  rule*  and  prin- 


CANN  v.  WARREN.  189 


ciples  of  law  which  must  control  and  govern  it  in  all  other  respects,  as 
an  action  of  trespass  for  the  same  injury  at  common  law. 

The  action  on  the  case  under  the  statute  being  therefore  in  effect  an  action 
of  trespass  for  such  an  injury,  it  is  incumbent  upon  the  plaintiff  to  prove 
that  he  was  in  the  actual  possession  of  the  land  at  the  time  when  the 
injury  or  trespass  was  committed,  in  order  to  entitle  him  to  recover  for 
the  injury  in  such  action.  But  where  the  injury  or  trespass  complained 
of  is  the  erection  and  maintenance  of  "a  fence,  and  it  appeals  from  the 
evidence  that  the  defendant  came  into  the  possession  of  the  place  in 
question  after  the  erection  of  the  fence,  peaceably  by  sale  and  convey- 
ance from  the  party  who  had  previously  disseized  the  plaintiff  and 
erected  it,  neither  case  nor  trespass  will  lie  against  him  for  maintaining 
and  continuing  it;  but  the  plaintiff  will  be  put  to  his  action  of  eject- 
ment to  recover  the  seizin  and  possession  of  the  premises,  and  after- 
wards to  his  action  to  recover  for  the  injury  committed  by  the  defendant 
in  the  mean  time. 

The  record  of  a  verdict  and  judgment  recovered  in  an  action  of  trespass 
q.  c.  /.,  under  the  plea-of  not  guilty  alone,  by  the  plaintiff  against  a  dis- 
seizor, foT  a  trespass  committed  by  him,  is  not  admissible  in  evidence 
in  an  action  by  the  plaintiff  against  the  alienee  of  the  disseizor  who 
comes  into  possession  peaceably  under  him,  for  continuing  and  main- 
taining the  trespass.  Ten  days'  notice  of  the  time  of  laying  down  pre- 
tensions, including  the  day  of  serving  the  notice  and  the  day  of  making 
the  survey,  is  sufficient. 

This  was  an  action  of  trespass  on  the  case.  The  narr 
contained  two  counts ;  the  first  of  which  was  for  a  trespass 
upon  real  property  by  the  defendant  in  maintaining  a  fence 
on  the  land  of  the  plaintiff;  and  the  second  was  for  an 
assault  and  battery.  Pleas,  not  guilty ;  and  to  the  second 
count,  molliter  maniis  impossuit. 

The  plaintiff,  at  a  previous  term  of  the  Court,  had  ob- 
tained a  verdict  and  judgment  in  an  action  of  trespass 
qaare  clause  mf regit  against  a  former  owner  of  the  adjoining 
land  by  the  name  of  Thompson,  for  erecting  the  fence,  who 
had  since  sold  and  conveyed  his  land  to  the  defendant, 
who  had  maintained  the  fence  where  he  erected  it. 

Bocjjh,  for  the  plaintiff,  offered  in  evidence  the  record  of 
the  suit  and  recovery  in  the  former  action  of  the  plaintiff 
against  Thompson. 

1).  M.  J3alcs,i'ov  defendant,  objected  to  the  admissibility 


190  SUPERIOE  COUKT. 

of  the  record,  because  the  suit  was  between  different  parties, 
and  there  was  no  privity  of  estate  between  trespassers. 

Mr.  Booth :  After  the  recovery  in  that  case,  and  the  sale 
of  the  premises  by  the  defendant  in  that  suit  to  the  de- 
fendant in  this,  the  plaintiff  as  he  had  a  right  to  do,  went 
upon  the  ground  on  which  the  fence  stood  to  remove  it, 
and  was  resisted  and  prevented  from  doing  so  by  the  pre- 
sent defendant,  and  the  record  was  admissible  for  the  pur- 
pose of  showing  and  proving  that  right.  The  defendant, 
having  come  into  possession  of  the  premises  by  conveyance 
under  Thompson,  was  bound  and  concluded  as  a  privy  by 
the  result  of  that  suit,  which  turned  on  the  title  and  seizin 
of  the  land  in  question.  37  Eng.  C.  L.  R.  161 ;  1  Greenl. 
Ev.,  sees.  528,  531,  534;  1  Stark.  Ev.  241;  3  East,  346;  5 
Esp.  Rep.  58;  4  Dallas,  120,  436;  2  Wash.  Rep.  64;  2 
Barn.  £  Aid.  662. 

By  the  Court:  A  verdict  and  judgment  in  an  action  be- 
tween parties  was  evidence  in  another  action  between  the 
same  parties  and  their  privies  in  law,  or  estate.  All  the 
cases  cited  were  either  between  the  same  parties  substan- 
tially, or  they  were  cases  in  which  the  plea  of  liberum  tene- 
mentum  was  entered,  and  the  finding  of  the  jury  was  di- 
rectly on  the  question  of  title  involved  in  that  plea.  But 
in  the  case  of  the  plaintiff  against  Thompson,  the  plea  was 
simply  not  guilty,  and  the  verdict  for  the  plaintiff  was  on 
that  issue.  The  question  of  title  was  not  involved  in  that 
case;  the  only  question  involved  in  it,  besides  the  fact  of 
the  alleged  trespass,  was  the  possession  of  the  plaintiff  at 
that  time.  How  then  could  the  fact  of  the  trespass  and  the 
possession  of  the  plaintiff,  as  found  by  the  jury  at  that  time 
in  that  suit,  tend  to  prove  or  establish  his  possession  at  this 
time,  in  a  subsequent  action  for  a  subsequent  trespass  al- 
leged against  a  different  party?  The  verdict  and  judg- 
ment in  that  can  have  no  such  effect  in  this  case.  The 
doctrine  of  privity  does  not  apply,  because  an  action  of 
trespass  docs  not  lie  against  the  alienee  of  a  disseizor  by  a 


CANN  v.  WARREN.  191 

disseizee.  In  this  case  the  defendant  comes  into  possession 
peaceably  by  conveyance  from  one  in  the  actual  possession 
of  the  land,  and  is  therefore  not  liable  to  the  plaintiff  in  an 
action  of  trespass,  or  in  the  present  action,  for  the  con- 
tinuation of  a  trespass  originally  committed  by  the  dis- 
seizor before  the  plaintiff  has  recovered  the  possession  of 
the  premises  from  the  defendant  in  another  form  of  action. 
None  of  the  authorities  cited  shake  or  affect  this  principle. 

The  plaintiff  then  proceeded  and  proved  that,  thirty  or 
forty  years  before,  a  fence  was  put  up  by  him  and  Thomp- 
son on  the  plaintiff's  land  to  make  a  narrow  lane  between 
it  and  Thompson's  fence  for  the  convenience  of  the  latter, 
and  which  had  been  used  by  him  alone.  The  old  fence 
was  taken  down  and  a  new  one  was  put  up  by  Thompson 
without  his  consent.  It  was  for  this  the  suit  was  brought 
and  the  recovery  was  had  against  him.  Afterwards  he 
sold  the  land  to  the  defendant,  and  that,  when  the  plaintiff 
went  out  to  remove  the  fence  and  began  to  saw  upon  it, 
the  defendant  drew  a  stick  several  times  over  the  neck  and 
shoulders  of  the  plaintiff  close  to  him,  and  told  him  if  he 
did  not  desist  he  should  knock  him  down,  but  did  not 
strike ;  although  he  hit  the  saw  once  in  his  hand  and 
knocked  it  off  the  fence,  when  the  plaintiff  ceased  his 
efforts  to  remove  it.  The  plaintiff  then  closed  his  evi- 
dence. 

Mr.  Bates  submitted  a  motion  for  a  nonsuit.  There  was 
no  proof  that  the  defendant  had  entered  the  close  of  the 
plaintiff.  The  entry  must  be  an  actual  entry  on  the  actual 
possession  of  the  plaintiff;  as  there  was,  in  contemplation 
of  law,  no  constructive  possession  of  real  estate  in  tres- 
pass. Besides,  the  defendant  came  into  possession  of  the 
land  on  which  the  fence  stood  as  a  purchaser,  and  there- 
fore could  not  be  treated  as  a  trespasser.  Even  if  the 
plaintiff  had  re-entered  on  the  premises  in  question  after 
the  purchase  of  them  by  the  defendant,  he  could  not  have 
maintained   an    action   of  trespass  against   him  :    for  that 


192  SUPERIOR  COURT. 

remedy,  after  re-entry,  would  lie  only  where  the  re-entry 
was  on  the  original  trespasser  or  disseizor,  and  not  against 
one  who  comes  into  possession  by  purchase  or  descent,  or 
by  color  of  right  and  title  under  him.  12  Johns.  Rep.  185. 
The  last  count  was  for  an  assault  and  battery,  but  there 
was  no  proof  of  an  assault  even. 

The  Court  considered  that  there  was  sufficient  proof  on 
the  second  count  to  go  to  the  jury,  and  refused  to  nonsuit 
the  plaintiff. 

The  counsel  for  the  defendant  then  proceeded  to  adduce 
his  title  to  the  premises,  and  gave  in  evidence,  among 
other  proof  of  title,  a  commission  to  mark  and  bound  the 
lands  in  question,  issued  on  the  petition  of  the  defendant, 
and  returned  and  confirmed  at  the  November  Term,  1854; 
also  the  plot  and  return  of  the  pretensions  laid  in  the  pre- 
sent case  on  behalf  of  the  defendant. 

Booth  objected  to  the  admission  of  the  latter,  on  the 
ground  of  insufficient  notice  to  the  plaintiff  of  the  time  of 
laying  down  the  pretensions.  The  rule  of  court  required 
ten  days'  notice,  which  of  course  imported  ten  days  exclu- 
sive of  the  day  of  serving  the  notice  and  the  day  of  the 
survey  for  the  pretensions.  But  in  this  case  the  notice  was 
dated  and  served  on  the  5th,  and  the  survey  was  made  on 
the  15th  of  November. 

The  Court  held  the  notice  to  be  sufficient. 

Mr.  Booth,  to  the  jury  :  It  had  been  insisted,  on  the  other 
side,  that  an  action  of  trespass  would  not  lie  without  an 
actual  possession  of  the  land  by  the  plaintiff.  But  was  this 
an  action  of  trespass  merely?  It  was  an  action  on  the 
case,  and  no  objection  had  been  made  and  no  argument 
urged  against  it  that  was  not  a  purely  technical  objection 
to  trespass  qunre  clnusem  /regit.  Trespass  on  the  case,  how- 
ever, would  lie  at  common  law,  where  the  other  form  of 


CANN  v.  WARREN.  193 


action  would  not ;  and  now,  by  a  statutory  provision  con- 
tained in  the  Revised  Code,  which  had  abolished  the  com- 
mon law  distinction  between  them,  whenever  one  of  the 
actions  would  lie,  the  other  would  likewise,  and  conse- 
quently the  technical  defence  insisted  on,  which  had  rela- 
tion only  to  a  trespass  committed  with  actual  or  implied 
force,  could  not  apply  in  the  present  case.  lie  therefore 
contended,  upon  the  facts  proved,  that  the  plaintiff  was 
entitled  in  this  action  to  recover  for  the  injuries  he  had 
sustained  to  his  rights  of  property  in  the  premises,  not- 
withstanding he  might  not  have  been  able  to  maintain  an 
action  of  trespass  quare  clausem  /regit  for  the  same  injuries 
at  common  law. 

Mr.  Bates,  for  the  defendant ;  The  question  of  title  was 
not  involved  in  the  case,  but  the  plaintiff  was  bound  to 
show  that  he  was  in  the  actual  possession  of  the  premises 
at  the  time  of  the  alleged  trespass  by  the  defendant.  Under 
the  conveyance  from  Thompson  to  the  defendant  as  a  pur- 
chaser, his  entry  and  possession  was  lawful,  and  was  to  be 
so  regarded  in  law  until  the  plaintiff  had  resorted  to  his 
action  of  ejectment,  if  the  legal  title  was  in  him,  and  re- 
covered the  possession,  by  which  he  would  be  remitted  to 
his  legal  title;  and  then,  by  the  jus  post  liminii,  he  would 
be  presumed  in  law  to  have  been  in  possession  the  whole 
time,  and  he  might  then  recover  in  an  action  of  trespass 
for  this  or  for  any  other  trespass  committed  on  the  pre- 
mises in  the  mean  time.  As  to  the  proof  under  the  second 
count,  the  defendant  had  a  right  to  use  whatever  force  was 
necessary  to  prevent  the  plaintiff  from  sawing  the  rails  and 
removing  the  fence. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  The 
declaration  in  the  case  was  in  fact  in  trespass,  though  the 
action  was  in  form  an  action  on  the  case;  and  at  common 
law,  in  the  absence  of  any  statutory  provision  on  the  sub- 
ject, the  action,  as  well  as  the  declaration,  should  have 
been   in   trespass,  and  not  on   the  case.     .Rut  our  statute, 


194  SUPEEIOR  COURT. 

Revised  Code,  379,  had  provided  that,  when  the  action  was 
in  case,  it  should  be  no  objection  to  maintain  it  but  for 
that  provision,  that  it  should  hare  been  in  form. an  action 
of  trespass,  and  vice  versa;  the  object  of  which,  as  we  un- 
derstand it,  was  simply  to  prevent  a  plaintiff  who  brought 
his  action  in  case,  when,  in  point  of  form  at  common  law, 
it  should  have  been  in  trespass,  or  had  brought  it  in  tres- 
pass when  it  should  have  been  in  case,  from  being  defeated 
in  maintaining  it,  by  objections  to  the  form  of  the  action 
merely,  either  on  a  motion  for  a  nonsuit,  or  by  the  direc- 
tion of  the  Court  to  the  jury,  or  in  any  other  way;  simply 
because  he  had,  on  certain  technical  distinctions  existing, 
between  them  at  common  law,  misconceived  his  form  of 
action  in  the  suit,  or  the  direct  or  consequential  nature  of 
the  injury  in  point  of  fact  to  be  proved.  These  distinc- 
tions are  not  unfrequently  subtile  and  refined,  as  well  as 
technical,  and  are  sometimes  difficult  of  application  in  cer- 
tain cases.  It  was  to  avoid  these  difficulties,  and  to  pre- 
vent the  failure  of  suits,  by  reason  of  these  nice  distinc- 
tions in  some  cases,  this  provision  was  ipserted  in  the 
statute.  But  the  Court  did  not  consider  that  it  had  abol- 
ished, or  was  intended  to  abolish,  all  distinctions  between 
the  actions  in  their  results,  and  in  all  the  legal  incidents 
and  consequences  attaching  to  them  respectively  at  com- 
mon law,  for  such  were  not  the  terms  of  the  statute.  Where 
the  action  was  on  the  case,  as  in  the  present  instance,  and 
where  the  action,  according  to  the  common  law,  and  but 
for  the  statute,  should  have  been  trespass,  although  it 
might  be  maintained,  and  no  objection  could  be  taken  to 
it,  merely  on  account  of  the  form  of  the  action,  yet  it  must 
still  be  regarded  under  the  statute  in  effect  and  in  the  ap- 
plication of  the  rules  and  principles  of  law,  which  must 
control  and  govern  it  in  all  other  respects,  as  an  action  of 
trespass  brought  for  a  direct  and  immediate  injury,  and 
subject  in  all  respects,  except  as  before  stated,  to  the  rules 
and  principles  which  apply  to  and  govern  the  action  of 
trespass  at  common  law. 

The  action  being,  therefore,  in  this  aspect  of  the  matter, 


CANN  v.  WARREN.  195 

an  action  of  trespass  in  effect  for  a  direct  and  immediate 
injury  to  the  possession  of  the  plaintiff,  it  was  incumbent 
upon  the  plaintiff  to  prove  that  the  land  on  which  the 
alleged  trespass  was  committed  and  maintained  by  the  de- 
fendant was  at  that  time  in  the  actual  possession  of  the 
plaintiff,  and  that  the  defendant  entered  on  his  land  and 
maintained  the  fence  upon  it  whilst  he  was  so  in  the  actual 
possession  of  it,  in  order  to  entitle  him  to  recover  for  it  in 
this  suit.  But  if,  on  the  contrary,  it  appeared,  from  the 
evidence,  that  James  Thompson,  or  any  other  person  be- 
fore that  time,  had  ousted  or  disseized  the  plaintiff  of  the 
possession  of  the' locus  in  quo,  or  place  in  question,  and 
erected  the  new  fence  thereon,  and,  whilst  he  was  in  the 
possession  of  it,  had  sold  and  conveyed  it  to  the  defendant, 
and  he  had  come  into  possession  of  it  peaceably  under  such 
sale  and  conveyance,  then  it  was  not  a  case  in  which  either 
an  action  on  the  case  or  an  action  of  trespass  at  common 
law  would  lie,  because  no  one  but  a  party  entitled  in  re- 
mainder or  reversion  can  recover  in  an  action  on  the  case 
at  common  law  for  a  direct  and  immediate  injury  to  his 
real  property,  which  the  plaintiff  was  not;  and  he  could 
not  recover  in  the  other  form  of  action,  that  was  to  say,  in 
an  action  of  trespass,  for  the  reasons  already  stated  by  the 
Court  on  the  motion  for  a  nonsuit. 

In  regard  to  the  second  count,  for  an  assault  and  bat- 
tery, if  the  defendant  was  in  possession  of  the  place  and 
the  fence  in  question  at  the  time  when  the  plaintiff  at- 
tempted to  saw  it  and  remove  it,  he  had  a  right  to  repel 
force  by  force,  provided  he  did  no  more  than  was  neces- 
sary and  proper  to  prevent  the  act. 

Verdict  for  the  plaintiff. 

Booth,  for  plaintiff. 

D.  31.  Bates,  for  defendant. 


196  SUPERIOE  COURT. 


Richard  Smethurst  v.  Moses  Journey. 

No  description  of  the  close  necessary  in  an  action  on  the  case  under  the 
statute  for  trespass,  and  if  alleged  in  the  narr,  it  need  not  be  proved. 
But  it  is  otherwise  in  an  action  of  trespass  quare  clausem  j regit. 

Action  on  the  case  for  taking  away  four  cart-loads  of 
gravel  and  feldspar  from  the  land  of  the  plaintiff.  There 
was  a  public  road,  on  both  sides  of  which  the  plaintiff 
owned  the  land,  and  the  material  was  taken  from  a  bank 
alongside  of  the  road,  but  whether  within  the  limits  of  it 
as  surveyed  and  laid  out,  did  not  appear  from  the  evidence. 
The  close  was  described  in  the  narr  by  abuttals,  but  no 
proof  was  offered  to  sustain  them. 

For  the  defendant  it  was  objected,  that  as  the  narr  set 
out  the  close  by  abuttals,  which  the  statute  required,  it 
was  a  material  averment,  and  without  some  proof  in  sup- 
port of  it  the  plaintiff  could  not  recover.  It  was  also  ob- 
jected that  an  action  on  the  case  would  not  lie,  but  it  should 
have  been  trespass  q.  c.f.,  notwithstanding  the  provision 
of  the  statute  abolishing  the  distinction  between  them; 
also  that  no  damage  had  been  proved,  and  that  none  in 
point  of  fact  had  been  sustained  by  the  plaintiff. 

For  the  plaintiff  it  was  replied,  that  the  action  was  in 
case,  which  would  lie  under  the  statute,  and  that  no  allega- 
tion or  proof  of  abuttals  was  required  in  the  action.  That 
no  proof  of  actual  damage  was  necessary,  since  every  entry 
on  the  land  of  another,  without  authority  or  license,  con- 
stituted a  trespass,  which  imported  an  injury  in  law,  and 
for  which  the  owner  was  entitled,  in  the  absence  of  any 
farther  proof,  to  nominal  damages  at  least. 

The  Court  charged  the  jury :  That  the  action  would  lie  by 
virtue  of  the  statute,  but  no  designation  of  the  close  by 
abuttals  or  by  other  description  was  necessary,  under  the 
provisions  of  it,  except  in  an  action  of  trespass  quarc  rlaus(  m 
freglt ;  the  object  of  which  was  to  avoid  the  pica  of  libcrum 


FAIRTHOKNE  v.  GARDEN.  197 

tenementum,  and  to  dispense  with  the  necessity  of  a  novel 
assignment  in  reply  to  it ;  which,  however,  did  not  apply 
in  the  present  form  of  action.  The  allegation  was  there- 
fore altogether  immaterial,  and  required  no  evidence  to 
sustain  it.  The  principle,  as  stated  by  the  counsel  for  the 
plaintiff,  in  regard  to  every  wrongful  entry  on  the  lands  of 
another,  was  also  correct,  for  every  such  entry  was  in  itself 
a  trespass,  in  which  the  law  implied  damage ;  but  the  prin- 
ciple would  not  apply  in  this  case  if  the  entry  was  on  the 
public  road  merely,  which  all  persons  had  a  right  to  enter 
on,  and  not  upon  the  possession  of  the  plaintiff  outside  of 
the  limits  of  it.  In  no  case,  however,  could  they  allow  any 
damage  for  the  material  taken  away,  for  no  damage  of  that 
kind  had  been  proved. 

The  defendant  had  a  verdict. 
Booth,  for  plaintiff. 
McCauley,  for  defendant. 


Frederick  Fairthorne  v.  Francis  R.  Garden. 

The  holder  of  a  negotiable  note  may  maintain  an  action  against  the  maker 
of  it,  without  showing  how  he  obtained  it,  unless  he  is  notified  previous 
to  the  trial  that  the  payment  of  it  will  be  resisted  for  good  and  sufficient 
reasons  in  law. 

This  was  an  action  on  a  promissory  note,  by  the  plain- 
tiff, an  indorsee,  against  the  defendant,  who  was  the  maker 
of  it.  The  note  was  drawn  payable  to  the  order  of  Samuel 
Baird,  who  indorsed  it  to  George  S.  Selden,  for  whom  it 
was  discounted  by  the  firm  of  Kramer  &  Rham,  of  Pitts- 
burgh, who  held  it  until  its  maturity.  After  it  had  been 
protested  for  nonpayment  Selden  paid  the  amount  of  the 


198  SUPERIOR  COURT. 

uote  to  Kramer  &  Rham,  and  by  his  request  and  direction 
tlrey  transmitted  it  to  Wilmington  for  collection,  for  bis 
use  and  benefit. 

Gordon,  for  the  defendant,  made  a  motion  to  nonsuit 
the  plaintiff.  There  was  no  proof  that  the  note  was  ever 
indorsed,  or  transferred  to  the  plaintiff,  or  that  he  had  any 
legal  interest  in  it,  or  was  even  the  rightful  owner  and 
holder  of  it.  From  tl\e  evidence  it  did  not  appear  that  lie 
had  anything  to  do  with  the  transaction,  in  one  way  or 
another,  or  that  he  had  any  right  or  claim  whatever  to  the 
money,  or  any  part  of  it,  due  upon  the  note. 

D.  M.  Bates,  for  the  plaintiff:  The  holder  of  a  negotiable 
note,  payable  to  order,  or  to  bearer,  had  a  right  to  the 
note,  and  might  maintain  an  action  upon  it  against  the 
maker,  without  showing  how  he  came  by  it;  for  it  was  no 
question  for  the  maker  to  raise  how  the  holder  came  by  it, 
unless  he  had  notified  the  holder  previous  to  his  taking  it, 
that  he  had  some  equity  or  good  ground  of  defence  against 
it.  To  hold  otherwise  would  entirely  destroy  its  negotia- 
bility. Where  he  had  no  equity  against  the  note,  but  was 
bound  to  pay  it  to  some  one,  he  was  bound  to  pay  it  to  any 
one  who  lias  it,  or  holds  it,  no  matter  how  lie  came  by  it. 
If  a  note  was  indorsed  by  the  payee  in  blank,  or  by  a  sub- 
sequent indorser  in  blank,  and  was  sent  to  him  for  collec- 
tion, he  might  bring  a  suit  upon  it  in  his  own  name,  and 
might  fill  up  the  indorsement  to  himself  by  adding  bis 
own  name.  Story  on  Promts.  Notes,  137.  A  note  payable 
to  order,  and  indorsed  in  blank  by  the  payee,  was  then 
the  same  as  a  note  payable  to  bearer;  and  therefore  it  was 
well  settled  that  if  there  were  several  indorsements  on  a 
note,  in  an  action  by  tlie  party  to  whom  it  was  last  in- 
dorsed against  the  maker,  it  was  only  necessary  to  prove 
on  the  trial  the  first  indorsement.  The  maker  was  never 
allowed  to  impugn  the  possession  of  the  holder,  or  to  deny 
bis  liability  upon  it  at  the  trial  without  giving  previous 
notice  to  the  other  party  of  his  intention,  and  the  ground 


FAIRTHORNE  v.  GARDEN.  199 

on  which  he  intended  to  resist  it.  Chit,  on  Bills,  512,  525. 
And  he  was  obliged  to  show  that  he  not  only  had  an  equity 
against  the  payment  of  it,  but  that  the  holder  had  no  equity 
to  have  it  paid.  Byles  on  Bills  of  Exch.  37 ;'  Law  Libr.  37. 
Besides,  he  had  a  right  then,  upon  the  trial,  to  insert  the 
name  of  the  plaintiff  as  the  holder,  after  the  last  indorse- 
ment, which  was  that  of  Selden's,  converting  it  from  an 
indorsement  in  blank  into  a  special  indorsement  to  the 
plaintiff,  if  it  were  necessary ;  but  it  was  not,  as  he  was 
entitled  to  recover  without  it. 

Gordon:  The  evidence  in  the  case  negatived  the  idea 
or  presumption,  which  arises  in  the  absence  of  all  proof  to 
the  contrary,  that  the  mere  holder  of  the  note,  from  the 
simple  fact  of  having  it  in  possession,  came  by  it  rightfully, 
and  was  therefore  entitled  prima  facie  to  sue  the  maker  and 
recover  upon  it,  without  being  required  to  show  how  he 
came  by  it.  But  the  evidence  in  this  case  negatived  that 
general  presumption,  which  only  arose  when  there  was  no 
proof  in  the  case,  or  presumption  of  fact  to  rebut  the  legal 
inference.  But  the  evidence  of  Kramer  was,  that  after  the 
maturity  and  protest  of  the  note,  and  whilst  the  firm  of 
Kramer  &  Rham  were  still  the  owners  and  holders  of  it, 
by  indorsement  from  Selden,  he  paid  the  amount  of  it 
with  interest  to  the  firm,  and  that  by  his  direction  they 
then  sent  it  to  Wilmington — he  did  not  state  to  whom,  but 
certainly  not  to  Fairthorne,  the  plaintiff — to  be  collected 
for  the  benefit  of  Selden,  who  was  then  the  bona  fide  owner 
of  the  note;  and  that  was  all  the  proof  disclosed  upon  the 
subject;  and  the  question  was,  how  the  plaintiff  came  by  it, 
how  it  got  into  his  possession,  and  what  legal  interest, 
right,  or  claim  he  can  have  in  the  note,  or  to  the  money 
due  upon  it,  to  entitle  him  to  sue  the  maker,  or  any  other 
person  for  it? 

The  Court  refused  the  motion  for  a  nonsuit,  and  charged 
the  jury  that  when  a  party  held  a  promissory  note,  in- 
dorsed  in   blank   by  the   payee   alone,  or   by  subsequent 


200  SUPERIOR  COURT. 

holders  afterwards,  the  law  presumed  that,  as  the  holder, 
he  was  properly  and  rightfully  in  possession  of  it,  and  he 
was  entitled  to  sue  for  and  recover  the  amount  of  it  from 
the  party  who  made  it,  without  showing  how  he  came  by 
it,  or  in  what  manner  he  obtained  it,  unless  he  was  notified 
by  the  maker  previous  to  the  trial  that  the  payment  of  it 
would  be  resisted  by  him  for  good  and  sufficient  reasons 
in  law,  which  had  not  been  done,  however,  in  the  present 
case.  That  this  presumption  was  but  the  necessary  and 
reasonable  result  of  the  negotiable  character  of  a  promis- 
sory note,  and  the  general  credit  and  currency  which  was 
conceded  to  such  notes  by  law,  by  common  consent,  and 
by  the  customs  and  usages  of  trade  and  commerce  every- 
where ;  and  therefore,  if  they  were  satisfied  upon  the  formal 
proof  offered  as  to  the  signature  of  the  maker,  and  the  in- 
dorsement by  the  payee,  their  verdict  should  be  for  the 
plaintiff. 


Thomas   II.  Baynard  and  Stephen   Postles  v.  Michael 

Harrity. 

If  a  principal  contracts  with  his  agent  to  do  an  illegal  act  for  him,  and 
by  reason  of  the  hitter's  negligence  in  the  mode  of  performing  it  an- 
other is  damaged,  for  which  the  principal  is  sued  and  a  judgment  is 
recovered  against  him,  he  cannot  maintain  an  action  against  the  agent 
for  the  amount  of  it.  But  if  the  agent  agreed,  before  proceeding  to  do 
the  work,  to  procure  the  proper  license  and  authority  for  it,  but  pro- 
ceeded without  it,  he  will  be  liable  to  the  principal  in  such  action, 
unless  the  principal  afterwards  agreed  that  he  should  do  the  work 
without  the  license.  In  the  action  by  the  principal  against  the  agent 
for  such  negligence,  the  judgment  recovered  against  him  is  evidence  of 
the  quantum  of  damage  sustained  by  him,  but  not  of  the  fact  on  which 
the  judgment  is  founded;  that  is  to  say,  that  the  damage  was  occa- 
sioned by  the  negligence  or  misconduct  of  the  agent,  for  that  must  be 
proved  by  evidence  aliunde. 

This  was  an  action  on  the  case  to  recover  the  amount 
of  a  judgment  obtained  in  an  amicable  action  on  a  rule  of 
reference  out  of  coiirt,  by  Richard    Bonsai    against    the 


BAYNARD  &  POSTLES  v.  HARRITY.  201 

plaintiffs,  for  the  value  of  a  horse  belonging  to  him,  which 
was  accidentally  killed  by  falling  into  a  trench,  which  was 
dug,  and  negligently  left  exposed,  across  a  street  in  the  city 
of  Wilmington,  by  the  defendant  as  the  agent  or  servant 
of  the  plaintiffs.  The  plaintiffs  were  the  owners  of  a 
leather  manufactory  in  Wilmington,  and  employed  the 
defendant  to  dig  the  trench  and  lay  a  trunk  across  the 
street,  the  object  of  which  was  to  open  a  communication 
below  the  street  for  the  drain  and  flow  of  water  from  their 
factory.  The  trench  was  dug  forty  feet  long  and  ten  feet 
deep  diagonally  across  the  street,  and  a  portion  of  it  was 
left  in  this  condition  so  negligently  exposed,  without 
guards  or  fenders  along  the  sides  of  it,  by  the  defendant, 
that  Bonsai,  who  was  driving  his  horse  rapidly  down  the 
street  about  four  o'clock,  on  a  very  dark  morning,  drove 
into  it  before  he  perceived  it;  by  which  accident  his  horse 
was  instantly  killed,  and  his  vehicle  and  harness  were  much 
damaged.  lie  afterwards  brought  an  action  for  the  in- 
juries and  loss  sustained  by  him,  and  obtained  judgment 
on  a  rule  of  reference  out  of  court,  and  the  report  of 
referees  against  the  plaintiffs  for  $287.50,  and  costs,  which 
the}-  paid;  and  this  action  was  now  brought  by  them  to 
recover  the  amount  from  the  defendant.  There  was  some 
proof  that  it  was  understood  between  the  plaintiffs  and 
the  defendant,  when  they  contracted  with  him  to  do  the 
work,  that  he  was  to  procure  a  permit  from  the  City  Coun- 
cil to  dig  the  trench  and  lay  the  trunk  across  the  street, 
and  an  application  was  made  by  him  for  that  purpose;  but 
it  was  not  obtained. 

Gordon,  for  the  defendant,  moved  to  nonsuit  the  plaintiffs. 
The  suit  was  brought  by  the  plaintiffs  against  the  defen- 
dant as  their  agent  and  servant,  for  negligence  in  the 
performance  of  the  contract  between  them,  by  reason  of 
which  they  had  been  damnified;  and  to  sustain  that  action, 
it  was  incumbent  upon  them  to  prove  that  there  was  a  eon- 
tract  between  them,  and  that  it  was  a  legal  and  valid 
contract,  and  not  against  public  policy  or  morality.     But 

14 


202  SUPERIOR  COURT. 

the  contract  to  dig  up  the  street  in  Wilmington  without 
the  license  of  the  City  Council,  and  which  was  done  with- 
out the  authority  and  permission  of  that  body,  was  illegal 
and  a  trespass  on  the  street,  and  all  concerned  in  commit- 
ting it  were  indictable  for  it.  It  was  a  nuisance  in  a  public 
highway,  and  the  contract  to  dig  the  trench  was  illegal 
and  void.  Story  on  Agency,  283 ;  Paley  on  Principal  and 
Agent,  66. 

Patterson,  for  the  plaintiffs,  admitted  the  general  princi- 
ple as  stated,  but  denied  its  application  in  the  present  case. 

By  (he  Court:  "We  refuse  to  nonsuit  the  plaintiffs,  because 
there  was  some  proof  offered  by  them,  that,  according  to 
the  agreement  between  them,  the  defendant  was  to  obtain 
whatever  license  or  permit  was  necessary  from  the  authori- 
ties of  the  city,  to  open  the  trench  and  lay  the  trunk  for 
the  plaintiffs.  If  this  was  the  agreement — and  that  was  a 
question  not  for  the  Court,  but  for  the  jury  to  determine — 
it  was  not  a  contract  to  do  an  illegal  act,  so  far  as  the  plain- 
tiffs were  concerned;  it  was  itself  a  breach  of  his  contract 
with  them  to  undertake  the  work  without  the  license,  and 
would  not  exempt  him  in  this  action  from  his  liability  to 
them  for  the  further  breach  of  his  contract,  which  implied 
an  engagement  on  his  part  to  exercise  due  care  and  dili- 
gence in  the  mode  of  performing  it. 

The  Court  charged  the  jury,  without  argument  of  coun- 
sel, on  points  suggested  by  them,  and  on  which  they  asked 
the  instructions  of  the  Court,  that  if  the  contract  between 
the  parties  was,  that  the  defendant  was  to  do  the  work  and 
open  the  trench  across  the  street  and  lay  the  trunk,  with- 
out license  first  obtained  from  the  proper  authorities  of  the 
city  for  that  purpose,  it  was  illegal,  and  the  plaintiffs  could 
not  maintain  an  action  upon  it  for  the  damage  sustained 
by  them,  by  reason  of  any  negligence  or  misconduct  on 
the  part  of  the  defendant  in  doing  the  work.  But  if  the 
agreement  between  them  was  that  the  defendant  was  to 


BAYNARD  &  POSTLES  v.  IIARRITY.  203 

procure  the  license  before  he  proceeded  to  open  the  trench, 
but  did  not  obtain  it,  the  plaintiffs  could  recover,  unless  it 
further  appeared  in  evidence  that  the  plaintiffs  were  ap- 
prised of  his  failure  to  obtain  it,  and  afterwards  agreed  to 
his  proceeding  without  it.  That  even  when  such  a  work 
was  begun,  and  even  whilst  it  was  in  progress  by  compe- 
tent authority,  or  permission,  it  was  the  duty  of  those 
having  charge  of  it  to  exercise  strict  diligence,  and  to  pro- 
vide all  needful  and  proper  means  to  prevent  such  accidents 
as  the  one  referred  to  in  this  case,  and  to  protect  the  public 
against  loss  and  injury  in  the  use  and  enjoyment  of  the 
common  highway ;  and  this  obligation  was  only  the  stronger 
certainly,  when  it  was  done  without  proper  authority.  As 
to  the  measure  of  damages,  in  regard  to  which  the  Court 
had  been  asked  to  instruct  the  jury,  they  could  not  exceed 
the  amount  of  the  judgment  recovered  against  the  plain- 
tiffs by  Bonsai,  with  interest  upon  it  from  the  date  of  the 
recovery;  but  whilst  that  judgment  was  evidence  to  show 
the  quantum  of  damage,  or  the  extent  to  which  the  plain- 
tiffs had  been  damnified,  and  the  amount  of  the  defendant's 
liability  to  them  in  the  present  action,  it  was  no  evidence 
of  the  fact  itself  upon  which  that  judgment  was  founded; 
that  is  to  say,  it  is  no  evidence  to  show  that  the  damage 
and  injury  which  they  have  sustained  was  occasioned  by 
the  negligence  or  misconduct  of  the  defendant,  for  that 
was  a  fact  to  be  proved  otherwise,  and  as  to  which  the 
jury  must  be  satisfied  by  other  evidence  in  the  case,  or 
they  could  not  find  a  verdict  for  the  plaintiffs. 

Verdict  for  the  plaintiffs. 


SUPERIOR   COURT. 

SPRING   SESSIONS, 
1856. 


Peter  B.  Socum  ats.  The  State  of  Delaware. 

Section  2,  chapter  52,  of  the  Revised  Code,  p.  144,  does  not  apply  to  non- 
resident free  negroes,  or  mulattoes,  who  were  residing  in  the  State  at 
the  time  when  the  Code  went  into  effect;  and,  if  such  come  into  the 
State,  they  are  not  liable  to  the  penalty  prescribed  in  that  section. 

In  a  proceeding  before  a  justice  of  the  peace,  under  that  section,  it  should 
affirmatively  appear,  both  in  the  information  and  the  adjudication,  that 
the  defendant  does  not  come  within  any  of  the  exemptions  or  excep- 
tions contained  in  the  section. 

In  pleading  upon  statutes,  the  general  rule  is,  that  where  the  exception 
occurs  in  the  enacting  clause,  or  in  the  same  or  a  preceding  section,  or 
in  a  preceding  statute,  the  plaintiff  must  negative  the  exception;  but 
where  the  exemption  occurs  in  a  subsequent  section  or  statute,  it  is  a 
matter  of  defence  to  come  from  the  other  side. 

Certiorari  to  Manaen  B.  Marvel],  Justice  of  the  Peace. 
Record,  The  State  of  Delaware  v.  Peter  B.  Socum.  The 
proceeding  hefore  the  justice  of  the  peace  was  against  the 
defendant  for  coming  into  the  State  contrary  to  the  provi- 
sions of  the  first  and  second  sections  of  chapter  52  of  the 
Revised  Code,  pp.  143,  144,  which  prohibit  free  negroes 
and  free  mulattoes,  not  lawfully  resident  in  the  State  at  the 
time  of  the  Code's  going  into  effect,  from  coming  into  it, 
except  as  provided  for  in  the  act.  The  affidavit  of  Nathaniel 
AW  Burton,  on  which  the  warrant  for  the  arrest  of  the  de- 
fendant below  was  issued,   simply  alleged  that  lie  was  a 


SOCUM  ats.  THE  STATE  OF  DELAWARE.       205 

free  mulatto,  and  was  then  residing  in  Sussex  County. 
The  complaint  set  forth  in  the  warrant  was  that  "  Peter  B. 
Socum,  a  non-resident  free  negro,  or  mulatto,  had  come 
into  the  State  contrary  to  the  laws  thereof,"  as  the  justice 
was  informed  on  the  oath  of  the  said  N.  W.  Burton.  The 
defendant  was  arrested  and  brought  before  the  justice,  and, 
upon  a  hearing,  was  condemned  to  pay  a  fine  of  fifty  dol- 
lars and  the  costs  of  prosecution,  and,  failing  to  pay  it,  was 
committed  to  jail. 

The  errors  assigned  were:  1.  That  the  information  on 
which  the  warrant  was  issued  was  not  such  as  was  required 
by  the  statute.  2.  That  the  complaint  did  not  state  the 
mode,  or  in  what  manner  the  defendant  had  violated  the 
act.  3.  That  it  did  not  appear,  by  the  record,  that  the 
defendant  was  not  a  mariner  or  waterman  engaged  in  that 
occupation,  nor  had  not  come  into  the  State  temporarily 
as  the  servant  of  a  non-resident,  or  as  a  seaman  in  connec- 
tion with  a  vessel  trading  with  or  bound  to  some  port  in 
the  State,  nor  from  the  State  of  Maryland  for  trade,  or 
other  necessary  and  temporary  purpose,  so  as  to  take  the 
case  out  of  the  savings  and  exceptions  contained  in  the 
statute. 

By  the  Court,  Houston,  J. :  This  case  must  be  reversed ; 
although  we  must  take  occasion,  in  the  first  place,  to  re- 
mark, that  the  causes  of  error  assigned  appear  to  us  to 
involve  some  uncertainty  and  confusion  of  ideas  as  to  the 
true  meaning  and  construction  of  the  act  in  question.  The 
proceeding  below  in  this  case  was  evidently  under  the 
second  section  of  the  statute,  which,  by  express  terms, 
applies  only  to  such  free  negroes  and  mulattoes  as  were 
not  residing  in  the  State  at  the  time  when  the  Revised 
Code  went  into  effect.  And  not  only  is  this  construction 
demanded  by  the  literal  and  obvious  import  of  the  terms 
used,  but  it  is  also  apparent,  from  the  words  employed  in 
the  first  section,  that  the  Legislature  intended  to  recognize 
and  make  a  distinction  between  such  free  negroes  and 
mulattoes  as  were  then  residing  in  the  State,  and  such  as 


206  SUPERIOR  COURT. 

were  not :  and  notwithstanding  it  saw  proper  to  provide 
in  the  first  section  that,  if  any  individual  of  the  former 
class — that  is  to  say,  if  "  any  resident  free  negro  or  mulatto 
should  voluntarily  leave  the  State  for  sixty  days,  he  should 
be  deemed  a  non-resident,  unless  he  was  a  mariner  or 
waterman  engaged  in  that  occupation,  or  was  absent  as  a 
wagoner  or  messenger,  in  the  actual  employment  of  a  citi- 
zen of  the  State,"  it  does  not  appear,  from  anything  ex- 
pressed or  implied  in  the  whole  chapter,  that  it  intended 
to  go  beyond  the  forfeiture  of  his  residence  imposed  in 
such  a  case,  or  designed  to  inflict  upon  such  as  then  resided 
in  the  State,  in  any  event,  the  penalties  provided  in  the 
eecond  section  against  such  as  were  not  then  residing  in 
the  State,  and  who  should  thereafter  come  into  it  contrary 
to  the  provisions  of  that  section.  And  this  distinction,  we 
think,  is  rendered  the  more  manifest  by  the  preceding 
words  contained  in  the  first  section,  that  "  no  free  negro 
or  free  mulatto,  not  now  lawfully  resident  in  this  State, 
can  gain  a  legal  residence,"  which  further  serves  to  show 
that  the  Legislature  intended  to  distinguish  between  such 
as  were  then  resident  and  such  as  were  not  then  residing 
in  the  State. 

But  be  this  as  it  may,  so  far  as  the  construction  of  the 
first  section  is  concerned,  it  is  clear  that  we  cannot  go  be- 
yond the  express  terms  used  in  the  second  section  of  the 
statute,  under  which  the  proceeding  was  had,  and  which 
could  only  have  arisen  under  that  section,  because  the 
remedy  provided  for  and  resorted  to  in  this  case  applies  to 
no  other  section.  It  is  also  a  statutory  provision  of  a  penal 
character,  and  for  this  reason  requires  a  strict  construction. 

The  words  of  the  second  section  are,**' no  free  negro,  or 
free  mulatto,  not  now  residing  in  this  State,  shall  hereafter 
come  into  the  State,  unless  it  be  temporarily,  as  the  servant 
of  a  non-resident,  or  a  seaman  in  connection  with  a  vessel 
trading  with  or  bound  to  some  port  of  the  State,  or  unless 
he  conies  from  the  adjoining  State  of  Maryland  for  trade, 
or  other  necessary  and  temporary  purpose,  under  penalty 
of  fifty  dollars;"'  and  it  then  goes  on  to  provide  that  if  a 


SOCUM  AT8.  THE  STATE  OF  DELAWARE.       207 

"  non-resident"  free  negro  or  mulatto  shall  come  into  the 
State,  contrary  to  the  provisions  of  "  this  section,"  it  shall 
be  the  duty  of  any  justice  of  the  peace  receiving  informa- 
tion of  the  fact  to  proceed  as  was  done  in  the  present 
case.  But,  as  we  have  already  stated,  this  section,  by  its 
express  terms,  applies  only  to  such  as  were  not  then  re- 
siding in  the  State  at  the  time  of  the  passage  of  the  act,  or 
when  the  Code  was  to  take  effect,  and  does  not  include 
such  as  were  then  residing  in  it ;  on  the  contrary,  the  latter 
class  are  altogether  out  of  the  operation  of  it,  and  this  sec- 
tion has  no  relation  whatever  to  them. 

But,  it  may  be  asked,  was  not  this  a  matter  of  defence  to 
come  from  the  other  side  below?  and  if  the  defendant  was 
residing  in  the  State  at  the  time  of  the  passage  of  the  act, 
but  had  since  been  residing  out  of  it,  and  had  but  recently 
again  come  into  it,  was  it  not  incumbent  upon  him  to  prove 
that  fact  on  the  trial  below,  which  would  have  clearly  enti- 
tled him  to  an  acquittal  ?  But,  as  he  had  been  condemned, 
would  not  this  Court  now  intend  and  presume  in  favor  of 
the  record  sent  up,  that  the  facts  proved  below  were  other- 
wise, and  that  he  had  been  lawfully  convicted  on  that 
trial  ?  To  this,  however,  we  answer  no;  because,  in  a  pro- 
ceeding like  this,  and  upon  a  statute  worded  as  this  is,  it 
is  necessary  that  it  should  affirmatively  appear,  both  in  the 
information  on  which  the  justice  acted,  and  in  the  adjudi- 
cation or  conviction  itself,  that  the  defendant  was  not  re- 
siding in  this  State  at  the  time  when  the  statute  was 
passed;  for,  if  he  was  residing  in  the  State  at  that  time, 
the  case  was  not  within  the  jurisdiction  of  the  justice,  and 
he  was  entirely  exempt  from  the  operation  and  the  penalty 
of  the  second  section  of  the  statute;  and  as  the  exemption 
or  exclusion  occurs,  if  such  was  the  case,  in  the  very  first 
line  of  the  second  section,  by  force  of  the  words,  "  not 
now  residing"  in  this  State,  which,  of  course,  excepts  by 
necessary  construction,  such  free  negroes  and  mulattoes  as 
then  were  residing  in  the  State,  it  was  necessary  that  the 
information  and  the  adjudication  should  have  both  nega- 
tived in  express  terms  that  as  well  as  the  other  cpialifica- 


208  SUPERIOR  COURT. 

tions  or  exceptions  embraced  in  the  second  section,  and 
should  have  alleged  that  he  was  not  residing  in  the  State 
at  that  time.  1  Saund.  262,  note  1.  For  convictions  like 
these  ought  to  be  certain,  and  cannot  be  aided  or  assisted 
by  legal  intendment,  or  by  inference  of  the  Court.  Rex  v. 
Fuller,  2  Lord  Raym.  510.  And  they  must  also  be  taken 
strictly.  Rex  v.  Little,  1  Burr.  613.  And  this  remark  is 
not  limited  merely  to  the  implied  exception  which  we  have 
just  noted,  but  applies  with  equal,  if  not  greater  force,  to 
the  other  exceptions  expressly  stated  in  the  first  paragraph 
of  the  second  section ;  for  it  was  equally  necessary  that 
both  the  information  and  the  conviction  should  have  nega- 
tived those  qualifications,  or  exceptions  also,  or  should  have 
expressly  stated  that  the  defendant  not  only  did  not  reside 
in  the  State  at  the  time  of  the  passage  of  the  statute,  but 
also  that  he  did  not  come  into  it  temporarily  as  the  servant 
of  a  non-resident,  or  as  a  seaman  in  connection  with  a  ves- 
sel trading  with  or  bound  to  some  port  of  the  State,  or  from 
the  State  of  Maryland  for  trade,  or  other  necessary  and 
temporary  purpose, — the  general  rule  of  pleading  upon 
statutes  being  that,  where  the  exception  or  qualification 
occurs  in  the  enacting  clause,  or  in  the  same  section,  or  in 
a  preceding  section  of  the  statute,  or  in  a  preceding  statute, 
the  plaintiff  must  negative  it — that  is,  he  must  show  that 
the  defendant  is  not  within  the  exception;  but  where  the 
exemption  is  contained  in  a  proviso,  in  a  subsequent  sec- 
tion or  statute,  it  is  matter  of  defence  to  come  from  the 
other  side,  and  therefore  it  is  not  necessary  to  state  in  the 
conviction  that  the  defendant  is  not  within  such  exception 
or  proviso.    1  Saund.  262,  note  1 ;  1  Ch.  PL  229. 

But,  according  to  the  record  before  us,  both  the  infor- 
mation and  conviction  arc  entirely  deficient  in  all  these 
respects,  and  the  case  below  is  therefore  reversed. 


WATSON  v.  WATSON.  209 


James  T.  Watson  v.  David  S.  Watson,  Executor  of  David 
Watson,  deceased. 

Although  a  son  cannot  recover  in  an  action  of  assumpsit  against  the  ex- 
ecutor of  his  father,  on  the  special  counts  upon  an  express  contract 
between  them,  that  if  the  son  would  remain  with  his  father  after  he 
attained  his  majority,  and  work  for  him  as  long  as  he  lived,  the  latter 
would  leave  him  in  his  will  one-half  of  his  land  when  he  died,  unless 
the  contract  is  in  writing,  yet  he  may  recover  on  the  common  counts 
for  the  value  of  the  work  and  labor  performed  by  him  under  the  agree- 
ment, provided  an  actual  or  express  promise  is  proved  on  the  part  of 
the  father  to  pay  or  compensate  him  for  his  service.  But  on  the  com- 
mon counts  for  work  and  labor  he  can  only  recover  the  actual  value  of 
his  services,  as  proved,  and  not  the  value  of  the  land  which  the  father 
agreed  but  failed  to  devise  to  him,  the  former  and  not  the  latter  being 
the  true  measure  of  the  damages  in  such  recovery. 

Assumpsit  for  work  and  labor.  The  narr  contained  se- 
veral counts;  the  first  were  special  counts  on  an  express 
contract,  and  the  latter  were  the  common  counts  for  work 
and  labor.  The  plaintiff  was  a  son  of  David  Watson,  the 
deceased,  and  the  proof  was  that  the  latter  promised  him 
after  he  attained  his  majority,  that  if  he  would  remain  with 
him,  and  work  for  him  as  long  as  he  lived,  as  he  was  then 
an  old  man,  be  would  leave  him  one-half  of  his' land  in  his 
will  when  he  died.  That  the  plaintiff  continued  with  him 
for  two  or  three  years  afterwards,  and  worked  diligently 
for  him  as  an  ordinary  laborer  on  his  farm,  and  the  father 
in  the  meanwhile  had  a  division  line  surveyed  across  his 
lands,  stating,  at  the  time,  that  he  was  having  it  done  for 
the  purpose  of  dividing  them  in  his  will  between  his  two 
sons,  the  plaintiff  and  David  iS.  Watson,  the  defendant.  A 
short  time  before  the  death  of  his  father,  however,  the 
plaintiff  contracted  a  marriage,  to  which  he  was  much  op- 
posed, and  in  consequence  of  it  he  would  not  permit  the 
plaintiff  to  remain  with  him,  but  discharged  him  entirely 
from  his  service,  and  afterwards  made  a  will  in  which  he 
devised  all  his  lands  to  the  defendant,  without  making  any 
provision  whatever  in  it  for  the  plaintiff. 

After  the  counsel  tor  the  plaintiff  had  closed  his  evidence, 


210  SUPERIOR  COURT. 

W.  Saulslfury,  for  the  defendant,  submitted  a  motion  for 
a  nonsuit,  on  the  following  grounds :  That  the  special 
counts,  as  well  as  the  promise  alleged  and  relied  on,  showed 
that  it  was  substantially  an  action  on  a  contract  for  the  sale 
and  conveyance  of  land,  which  was  void,  unless  it  was  in 
writing,  under  the  statute  of  frauds.  The  plaintiff  there- 
fore could  not  recover  on  the  special  counts,  or  on  the 
special  agreement.  Nor  could  he  recover  on  the  common 
counts ;  first,  because  he  had  proved  a  special  contract, 
and  in  the  next  place,  because  it  was  an  action  by  a  son 
against  the  executor  and  representative  of  his  father,  and 
as  between  such  near  relations  the  law  would  imply  no 
promise  to  pay  for  the  work  and  labor,  but  a  positive  and 
express  promise  to  pay  was  necessary  to  support  the  action, 
and  no  such  promise  as  the  law  required  in  this  class  of 
cases  had  been  proved. 

E.  D.  Cidlen,  for  the  plaintiff:  If  the  plaintiff  failed  to 
recover  on  the  special  counts  simply  because  he  had  failed 
to  prove  that  the  special  contract  alleged  was  reduced  to 
writing,  and  not  because  he  had  proved  a  special  contract 
different  from  the  one  alleged  in  the  declaration,  theu  he 
might  fall  back  on  the  common  counts,  and  recover  upon 
the  quantum  meruit,  and  the  implied  promise  to  pay  for  his 
work  and  labor.  But  the  testator  was  not  to  pay  for  it  in 
money;  he  was  to  compensate  the  plaintiff  for  it  by  a  de- 
vise of  land  to  him  in  his  will.  This,  however,  he  had  not 
done;  yet  the  plaintiff  was  entitled  to  recover  on  the  com- 
mon counts.  Although  he  could  not  recover  on  the  special 
contract  for  the  reason  assigned,  yet  a  party  could  recover 
in  an  action  for  work  and  labor  performed  and  to  be  paid 
for  by  a  provision  in  a  last  will  and  testament,  such  com- 
pensation as  the  jury  might  consider  his  services  reason- 
ably worth.  .3  Johns.  199;  1:5  U 'end.  4G0 ;  2  Hill,  57(5;  13 
Johns.  879;  Add.  on  Contr.  213;  7  Cow.  92.  A  parol  con- 
tract to  pay  for  services  by  the  conveyance,  of  a  piece  of 
land  on  their  being  performed,  was  not  void  under  the 
statute  of  frauds,  hut  the  plaintiff  could  recover  for  the 


WATSON  v.  WATSON.  211 

work  and  labor,  as  the  object  of  the  action  was  not  to  en- 
force the  agreement  to  convey  the  land,  but  to  recover  com- 
pensation justly  due  for  the  labor  performed,  and  for  this 
purpose  the  agreement  to  convey  the  land  might  be  treated 
as  an  entire  nullity.  7  Cow.  92 ;  2  Hill,  485 ;  Chit,  on  Contr. 
582;   2  Saund.  PL  and  Ev.  1295. 

W.  Saulsbury,  in  reply,  contended  that  the  plaintiff,  if  he 
could  recover  at  all,  must  recover  on  the  special,  but  could 
not  recover  on  the  common  counts ;  for  which  he  relied  on 
the  case  cited  from  7  Cow.  92.  He  also  argued  against  the 
ruling  of  the  Court  in  the  case  cited  from  2  Hill,  485. 

By  the  Court :  To  allow  the  plaintiff  in  this  action  to  re- 
cover the  value  of  the  land  which  it  is  stated  the  father  had 
agreed  to  devise  to  him  in  his  will,  in  consideration  of  his 
remaining  with  him  and  working  for  him  until  the  father's 
death,  would  be  in  contravention  both  of  the  letter  and  the 
policy  of  the  statute  of  frauds.  The  plaintiff  therefore  can- 
not maintain  the  action  on  the  special  counts,  or  upon  the 
special  contract  set  out  in  them,  because  it  was  not  in 
writing.  But  he  may  recover  on  the  common  counts,  by 
way  of  damages,  such  compensation  for  the  work  and  labor 
performed  by  him,  as  the  jury  may  consider  his  services 
to  have  been  reasonably  worth,  according  to  the  evidence 
before  them  on  that  point;  and  this  principle  we  consider 
is  clearly  established  by  the  ruling  in  the  case  cited  from 
2  Hill  Rep.  485,  in  which  we  concur. 

There  is  one  fact  in  this  case  which  distinguishes  it  from 
all  the  cases  which  had  been  cited,  on  the  question  of  plead- 
ing, which  had  been  raised  and  discussed  in  the  argument, 
which  the  Court- would  notice  in  support  of  the  point  just 
ruled,  that  the  recovery  could  not  be  on  the  special  but 
must  be  on  the  common  counts,  for  the  work  and  labor 
merely,  without  any  reference  to  the  value  of  the  land  to 
be  devised  as  a  compensation  for  the  service,  and  that  is 
the  fact  that  the  special  agreement  alleged  was  not  actually 
performed  by  either  party,  although,  as  the  case  now  pre- 


212  SUPERIOR  COURT. 

sents  itself  to  the  Court  and  jury,  the  plaintiff  was  pre- 
vented from  performing  and  completing  it  on  his  part  by 
the  testator.  According  to  the  evidence,  as  it  now  stands, 
the  plaintiff  was  prevented  from  performing  the  contract, 
that  is  to  say,  from  remaining  with  and  working  for  his 
father  until  his  death,  by  reason  of  the  displeasure  of  the 
latter  on  account  of  his  marriage,  and  his  discharge  from 
the  service.  But  an  action  cannot  be  maintained  on  a 
special  contract  which  has  not  been  performed,  although 
the  party  who  has  been  prevented  from  performing  it  by 
the  default  of  the  other  may  recover  in  an  action  of  indebi- 
tatus assumpsit  on  the  common  counts,  for  his  services  and 
expenses  under  the  special  contract,  done,  or  incurred  in 
the  partial  performance  of  it.  We  therefore  think,  as  the 
case  is  now  presented,  the  plaintiff  is  entitled  to  recover  on 
the  common  counts  for  work  and  labor,  according  to  the 
actual  value  of  his  services,  without  any  reference  to  the 
value  of  the  land  to  be  devised  by  the  terms  of  the  alleged 
special  agreement,  provided  the  jury  should  be  satisfied 
from  the  evidence  that  he  was  employed  by  his  father,  the 
testator,  to  perform  them,  under  an  actual  or  express  pro- 
mise by  the  latter  to  pay  or  compensate  him  for  them  when 
performed,  which  was  a  question  for  the  jury  alone  to  de- 
cide.    The  motion  for  a  nonsuit  is  therefore  refused. 

The  case  afterwards  went  to  the  jury  on  the  charge  of 
the  Court,  reaffirming  the  same  views  announced  on  the 
motion  for  a  nonsuit,  and  the  plaintiff  had  a  verdict  for  the 
value  of  his  services  proved. 

C.  S.  Layton  and  E.  D.  Cullen,  for  plaintiff. 

W.  Saulsbury,  for  defendant. 


MORRIS  v.  BURTON.  213 


Joseph  Morris,  defendant  below,  appellant,  d.  John  H. 
Burton,  plaintiff  below,  respondent 

If  after  a  tenant  has  given  three  months'  notice  in  writing  of  his  inten- 
tion to  deliver  up  the  demised  premises  to  his  landlord  at  the  end  of  the 
year,  another  person  in  the  meanwhile  enters  into  possession  of  them 
by  the  permission  of  his  wife,  the  husband  being  present  and  having 
knowledge  df  the  entry,  though  he  refused  his  permission,  he  will  be 
presumed  to  have  permitted  it  and  assented  to  it,  and  if  the  sub-tenant 
holds  over,  he  will  be  liable  for  double  rent. 

A  motion  for  leave  to  amend  the  declaration  is  too  late  after  the  Court 
has  announced  its  opinion  "on  a  motion  for  a  nonsuit. 

Appeal  from  the  judgment  of  a  justice  of  the  peace,  in 
an  action  of  debt  for  rent.  Burton,  the  plaintiff  below, 
had  rented  a  house  and  lot  to  one  Henry  E.  Hill,  by  parol, 
whose  unexpired  term  for  the  year  1851  was  sold  at  con- 
stable's sale,  and  bought  by  Morris,  the  defendant  below. 
Three  months  before  the  expiration  of  the  year,  the  defen- 
dant gave  notice  in  writing  to  the  plaintiff  of  his  intention 
to  give  up  the  premises  at  the  end  of  the  year.  In  the 
meanwhile,  however,  another  person,  without  the  consent 
of  Morris,  but  by  the  permission  of  his  wife,  moved  into 
the  property  and  held  over  through  the  ensuing  year. 
Morris  paid  the  rent  for  1851,  but  refused  to  pay  it  for 
1852,  and  this  action  was  brought  to  recover  double  rent 
for  the  latter  year.  The  pronarr  alleged  that  both  Morris 
and  the  person  who  had  come  into  possession  of  the  pre- 
mises by  the  permission  of  his  wife,  held  over  for  that 
year,  but  the  action  was  against  Morris  alone. 

W.  Salisbury,  for  the  defendant,  moved  a  nonsuit,  because 
it  was  provided  by  the  statute,  that  if  the  tenant,  or  any 
one  coming  into  possession  under  him,  should  hold  over 
after  due  notice  served,  then  either  of  them,  at  the  election 
of  the  landlord,  should  be  liable  for  double  rent.  But  in 
the  present  ease  the  declaration  alleged  that  both  the 
defendant  and  the  person  whom  it  was  alleged  had  come 


214  SUPERIOR  COURT. 

into  possession  under  him,  had  held  over;  and  because  it 
was  not  proved  that  that  person  had  come  into  possession 
of  the  premises  with  the  consent  or  permission  of  the 
defendant,  but  by  the  permission  of  his  wife,  which  she 
had  no  authority  to  grant,  so  as  to  bind  her  husband, 
particularly  as  it  had  been  proved  that  the  defendant  him- 
self had  refused  to  assent  to  it. 

E.  D.  Cullen,  for  the  plaintiff":  Morris,  the  defendant,  was 
the  tenant,  and  gave  the  notice  of  his  intention  to  deliver 
up  the  property  at  the  end  of  the  year;  and  it  was  his  duty 
to  deliver  it  up,  or  to  see  that  his  sub-tenant,  who  came 
into  possession  under  him,  did  so,  pursuant  to  the  notice, 
for  the  plaintiff",  as  landlord,  had  nothing  to  do  with  the 
sub-tenant,  as  she  was  the  tenant  of  the  defendant,  and  not 
of  the  plaintiff",  although  either  of  them  would  be  liable  to 
the  landlord,  at  his  election,  to  double  rent,  for  holding 
over  after  the  expiration  of  the  year.  The  narr,  it  was 
true,  alleged  that  both  held  over ;  but  the  plaintiff",  in  the 
exercise  of  the  election  conferred  upon  him  by  the  statute, 
had  brought  his  action  against  the  defendant  only.  As  to 
the  objection  that  the  sub-tenant  entered  by  the  permission 
of  his  wife  and  without  the  consent  of  the  defendant  him- 
self, it  was  of  no  avail,  for  he  must  be  presumed  to  have 
acquiesced  in  it;  because  if  he  did  not  mean  to  assent  to 
it,  why  did  he  not  insist  on  her  removing  either  before  or 
at  the  end  of  the  year?  By  failing  to  do  so,  he  became 
liable  for  her,  as  one  coming  into  possession  under  him. 
10  Wend.  79;  2  Stark  Ev.  57;  1  Esp.  Hep.  142;  5  Cow.  123; 
14  East,  234. 

The  Court  overruled  the  motion  for  a  nonsuit,  and  the 
plaintiff's  counsel  then  applied  for  leave  to  amend  the  norr 
by  striking  the  name  of  the  sub-tenant  from  the  averment, 
which  alleged  the  holding  over  after  notice;  but  the  Court 
declined  to  grant  the  leave,  upon  the  ground  that  the  ap- 
plication was  too  late,  after  the  Court  had  announced  its 
opinion  on  a  motion  for  a  nonsuit. 


O'NEAL  v.  BACON.  215 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury:  That  if 
the  person  spoken  of  as  the  sub-tenant  in  this  case  came 
into  possession  of  the  premises  with  the  knowledge  and 
consent  of  the  defendant,  then  she  came  in  under  him,  and 
although  a  wife  has  no  power,  as  such  merely,  to  rent  her 
husband's  property,  if  a  person  goes  into  possession  by  her 
permission,  the  husband  being  present  and  having  know- 
ledge of  it,  will  be  presumed  to  assent  to  it,  and  a  person 
so  entering  will  be  considered  as  having  come  into  posses- 
sion under  him.  The  defendant  alone  in  this  case  had  the 
power  to  prevent  such  occupancy,  and  if  he  permitted  it, 
he  assented  to  it ;  and  if,  three  months  before  the  expira- 
tion of  the  year  1851,  written  notice  had  been  given  by 
the  defendant  to  the  plaintiff  of  his  intention  to  deliver  up 
the  premises  to  him  at  the  end  of  it,  and  either  the  defen- 
dant, or  the  person  coming  into  possession  under  him,  held 
over  and  failed  to  deliver  them  up  at  that  time,  then  the 
defendant  would  be  liable  to  the  plaintiff  for  double  rent 
for  the  following  year. 


Thomas  O'Xeal,  defendant  below,  appellant,  v.  James  W. 
Bacon,  plaintiff  below,  respondent. 

It  is  no  defence  to  an  action  between  the  original  parties  on  a  promissory 
note  given  on  a  sale  of  goods,  that  the  goods  turned  out  to  be  of  no 
value,  by  reason  of  which  the  consideration  wholly  failed,  without  proof 
of  an  express  and  fraudulent  warranty  of  the  goods,  or  fraudulent  repre- 
sentations as  to  their  value  by  the  plaintiff,  in  the  sale  of  them  to  the 
defendant. 

What  will  constitute  an  express  warranty? 

Appeal  from  a  judgment  recovered  by  the  plaintiff  be- 
low before  a  justice  of  the  peace,  tried  before  Milligan  and 
Houston,  Justices.  The  pronarr  was  in  assumpsit  on  a  pro- 
missory note  for  $77.48,  from  the  defendant  to  the  plain- 
tiff below.     The  usual  pleas  were  entered,  with  notice  to 


216  SUPERIOR  COURT. 

the  plaintiff  that  the  defendant  would  insist  on  a  failure  of 
the  consideration  of  the  note  at  the  trial.  The  considera- 
tion for  the  note  was  a  quantity  of  lime  and  Bolivian  guano, 
which  the  defendant  had  purchased  of  the  plaintiff,  who 
was  a  general  trader  in  those  articles.  The  price  of  the 
lime  had  been  paid,  and  the  plaintiff  admitted  that  the 
defendant  was  entitled  to  a  credit  on  the  note  for  it,  but 
the  guano  had  proved  to  be  of  no  value,  and  the  defendant 
refused  to  pay  for  it.  It  was  proved  that  the  plaintiff  had 
afterwards  admitted  that  he  knew  that  the  guano  had  been 
of  no  value  to  the  defendant,  and  that  he  had  derived  no 
benefit  from  the  use  of  it;  but  he  denied  at  the  same  time 
that  he  had  warranted  it,  or  that  he  knew  at  the  time  that 
he  sold  it  that  it  was  a  worthless  article ;  on  the  contrary, 
he  believed,  from  the  representations  which  he  had  re- 
ceived in  regard  to  it  when  he  bought  it,  that  it  was  a  good 
and  valuable  fertilizer,  and  had  so  stated  to  persons  to 
whom  he  had  sold  it. 

W.  Saulsbury,  for  the  plaintiff:  There  was  no  proof  of 
fraud,  or  fraudulent  misrepresentations,  on  the  part  of  the 
plaintiff,  in  the  sale  of  the  article,  or  that  he  knew  that  it 
was  not  good,  or  was  of  no  value  when  he  sold  it;  and 
there  was  no  evidence  that  he 'warranted  it,  or  employed 
any  terms  in  speaking  of  it  or  recommending  it  which 
could  be  construed  to  import  a  warranty.  Because  if  he 
had,  in  good  faith  at  the  time,  merely  expressed  an  opinion 
as  to  the  merits  and  quality  of  it,  and  his  belief  that  it  was 
a  good  article,  it  would  not  amount  to  a  legal  warranty  of 
it.  Story  on  Contr.,  see.  828.  And  that,  without  proof  of 
such  fraud  or  warranty,  it  was  not  competent  for  the  de- 
fendant to  show,  and  he  could  not  rely  on  a  partial  failure 
of  the  consideration  of  the  note;  and,  under  the  issues 
joined  in  the  case,  it  was  no  defence  to  show  a  total  failure 
of  the  consideration.  Chit,  on  Bills,  72,  77;  2  Selir.  N.  /'. 
81,  t>57:  4  Waul.  481*. 

(.'.    M.   ('"lien,  for  defendant:    Upon    the   sale   of  every 


O'NEAL  v.  BACON.  217 

article  for  a  valuable  consideration,  the  law  implied  that  it 
was  merchantable  and  of  some  value,  and,  if  sold  for  a  par- 
ticular purpose,  that  it  was  fit  for  that  purpose.  Story  on 
Sales,  315 ;  2  Selw.  N.  P.  180 ;  15  Eng.  C.  L.  R.  529 ;  40 
Eng.  C.  L.  R.  371;  42  Eng.  C.  L.  R.  452.  When  the 
action  was  between  the  original  parties  to  the  note,  and 
there  was  any  fraud  or  suspicion  of  fraud,  or  misrepre- 
sentation, with  a  view  to  deceiva  the  maker  of  it,  it  was  a 
good  defence  to  the  action  upon  it.  Chit,  on  Bills,  68.  No 
particular  form  of  words  was  necessary  to  constitute  a 
warranty,  and  the  word  warrant  need  not  be  used;  but 
whether  a  statement  was  a  warranty,  or  only  a  representa- 
tion, was  a  question  for  the  jury.  2  Selw.  N.  P.  180.  Where 
there  was  any  deception  or  misrepresentation  made  with  a 
view  to  induce  the  purchaser  to  buy,  a  partial  failure  was 
always  a  good  defence  to  an  action  on  a  promissory  note, 
as  between  the  original  parties  to  it ;  and,  without  such 
misrepresentation,  a  total  failure  of  consideration  was  al- 
ways a  good  defence,  as  between  the  same  parties.  Story 
on  Contr.  484 ;  Story  on  Sales,  sees.  408,  428. 

The  Court,  Houston,  J.,  eharged  the  jury :  That,  as  a  pro- 
missory note  imports  prima  facie  an  adequate  consideration; 
or,  in  other  words,  the  law  presumes,  on  proof  of  the 
making  and  issuing  of  such  a  note,  that  it  was  given  for 
a  valid  and  valuable  consideration,  it  was  incumbent  upon 
the  defendant  to  rebut  this  presumption  by  showing  the 
contrary,  in  order  to  defeat  the  action  and  entitle  himself 
to  the  verdict.  In  an  action  between  the  original  or  im- 
mediate parties  to  a  promissory  note,  it  was  always  allow- 
able for  the  defendant  to  do  this,  by  showing  the  want  of 
any  consideration  for  it  at  the  time,  or  the  total  failure 
of  it  after  it  was  given.  The  defence  relied  on  in  this 
case  was  the  subsequent  failure  of  the  consideration  for 
which  the  note  was  given,  and  for  which  it  was  now  put  in 
suit;  for  it  could  not  be  said  to  be  a  note  without  any 
consideration  in  its  inception.  The  lime,  about  which 
there  is  no  dispute,  it  is  admitted,  has  since  been  paid  for, 

15 


218  SUPERIOR  COURT. 

and  the  balance  demanded  upon  the  note  was  the  price  to 
be  paid  for  the  guano,  which  the  defendant  alleges,  and 
which  the  plaintiff,  we  believe,  does  not  deny,  afterwards, 
on  its  application  to  the  defendant's  land,  turned  out  to  be 
of  no  value  whatever  to  the  defendant  as  a  fertilizer,  for 
which  purpose  the  plaintiff  sold  and  the  defendant  bought 
it.  Of  course  it  was,  in  the  nature  of  things,  incapable  of 
being  returned  to  the  plaintiff.  But  whether  in  this  case 
this  is  such  a  total  or  entire  failure  of  the  consideration  for 
which  the  note  as  it  is  now  presented  to  us  was  given,  as 
will  constitute  a  bar  to  the  action  and  entitle  the  defendant 
to  a  verdict,  will  depend  upon  two  facts,  which  the  jury 
must  consider  and  determine,  either  of  which,  if  found 
against  the  plaintiff,  will  be  sufficient  to  defeat  the  action. 
And  the  first  is,  whether  the  plaintiff,  at  the  time  of  the 
sale  of  the  guano  to  the  defendant,  expressly  warranted  it 
to  be  a  good  or  valuable  commodity  as  a  fertilizer,  knowing 
at  the  time  that  it  was  useless,  or  of  little  or  no  value  for 
that  purpose.  If  so,  then  he  was  not  entitled  to  recover. 
But,  admitting  that  he  did  not  so  warrant  it,  the  second 
question  is,  whether  the  plaintiff  fraudulently  recommended 
and  misrepresented  the  quality  of  the  article  to  the  de- 
fendant, and  falsely  stated  it  to  be  good  or  valuable,  know- 
ing at  the  time  that  it  was  worthless,  or  of  little  or  no 
value,  and  by  means  of  such  false  and  fraudulent  repre- 
sentations prevailed  upon  the  defendant  to  purchase  it,  and 
obtained  the  note  in  question  for  it;  then,  in  that  event, 
also,  the  plaintiff  would  not  be  entitled  to  recover;  but  in 
either  of  these  events,  the  verdict  should  be  for  the  de- 
fendant, because  fraud  vitiates  all  contracts,  and  it  is  a  good 
defence  to  an  action  on  a  promissory  note  between  the  im- 
mediate or  original  parties  to  it,  that  it  was  obtained  by 
fraud  or  fraudulent  representations.  Should  the  opinion 
of  the  jury,  however,  be  against  the  defendant  on  both  of 
these  questions,  then  their  verdict  should  be  in  favor  of  the 
plaintiff. 

As  to  what  will  constitute  an  express  warranty,  the  Court 
would  merely  add  that,  in  order  to  warrant  a  thing,  even 


JEFFERSON  v.  CHASE.  219 

expressly,  it  is  not  necessary  that  the  seller  should  use  that 
identical  term,  for  no  form  of  words  was  necessary  to  con- 
stitute a  contract  of  warranty.  Any  stipulation  made  and 
received  with  that  view,  or  any  assurance  or  declaration 
which  the  seller  utters  at  the  time,  with  the  intention  of 
warranting  or  binding  himself,  that  the  quality  or  condi- 
tion of  the  article  is  such  as  is  represented,  will  constitute 
even  an  express  warranty,  whether  the  word  "  warrant" 
be  used  or  not.  But  a  simple  affirmation  that  a  thing  is 
good  or  sound  will  not,  unless  it  was  so  intended  and  un- 
derstood by  the  parties  at  the  time ;  and  no  general  praise, 
or  commendation,  or  opinion,  or  belief  expressed  in  good 
faith,  and  without  an  intention  to  warrant,  can  be  so  con- 
sidered. Where  the  buyer  and  seller  have  equal  knowledge 
or  opportunities  of  knowing  the  properties  or  qualities  of 
the  thing  in  question,  and  each  relies  on  his  own  judgment 
and  observation  in  regard  to  the  matter,  each  deals  on 
the  strength  and  basis  of  his  own  opinion ;  and  there  is  no 
warranty,  either  express  or  implied,  involved  in  the  trans- 
action. 

Verdict  for  defendant. 

W.  Saulsbury,  for  the  plaintiff*. 

C.  31.  and  E.  D.  Cullen,  for  defendant. 


Robert  W.  Jefferson  v.  James  S.  Chase. 

A  narr  in  the  detinuit  in  replevin  amended  to  a  narr  in  the  detinei  on 
motion  after  the  jury  was  sworn. 

If  a  principal  in  the  sale  of  goods  directs  his  agent  not  to  deliver  them 
until  they  have  been  paid  for,  and  the  agent  without  his  knowledge  and 
authority,  delivers  them  to  the  buyer  on  trial,  to  be  paid  for,  or  re- 
turned by  a  certain  day,  and  it  is  not  done ;  there  is  no  change  of  pro- 
perty in  the  goods  by  such  delivery  of  them,  and  the  sellir  may  retake 


220  SUPERIOR  COURT. 

them,  notwithstanding  he  may  have  afterwards  acquiesced  in  the  de- 
livery of  the  agent,  and  declared  in  the  mean  time  that  he  had  sold  them 
to  the  buyer. 

Replevin  for  a  horse.  The  declaration  was  in  the  detinuit. 
After  the  jury  were  sworn,  the  counsel  for  the  plai  ntiff  asked 
for  and  obtained  leave,  notwithstanding  it  was  objected  to 
on  the  other  side,  to  amend,  and  change  it  to  a  declaration 
in  the  detinet. 

The  proof  on  the  part  of  the  defendant  was,  that  the 
plaintiff"  had  inquired  of  him  if  he  had  not  a  horse  for  sale, 
to  which  he  replied  that  he  had,  but  if  he  sold  him,  he 
must  have  the  money  for  him,  as  he  had  immediate  need 
of  it ;  and  he  afterwards  instructed  his  agent,  who  had  the 
care  of  the  horse  in  his  absence,  that  if  the  plaintiff  should 
call  for  the  horse  whilst  he  was  away,  not  to  let  him  have 
it,  unless  he  paid  the  money  for  it,  stating  the  price. 
During  the  same  day,  after  the  defendant  had  left  home, 
the  plaintiff  informed  the  agent  that  the  defendant  had 
told  him  that  he  could  take  the  horse  for  a  few  days,  to 
try  him,  and  if  he  was  satisfied  with  him,  he  was  to  pay 
for  him  on  the  following  Tuesday,  and  if  not,  he  was  to 
return  him  by  that  time;  upon  which  the  agent  permitted 
him  to  take  away  the  horse,  which  he  kept  for  a  mouth, 
without  offering  to  pay  for  him,  or  to  return  him,  when 
the  defendant  took  him  out  of  his  possession  without  his 
knowledge,  or  consent,  and  locked  him  up  in  his  stable. 
On  the  part  of  the  plaintiff  in  reply,  it  was  proved  that 
during  the  mouth  he  had  had  the  horse  in  his  possession, 
the  defendant  had  several  times  stated  to  different  persons 
that  he  had  sold  the  horse  to  the  plaintiff,  and  that  he  was 
soon  expecting  to  receive  the  money  for  him.  The  plain- 
tiff also  proved  a  subsequent  tender  of  the  price  of  the 
horse,  and  a  demand  and  refusal  before  he  sued  out  his 
writ  of  replevin. 

W.  Saulsbury,  for  the  plaintiff,  contended,  that  admit- 
ting it  to  be  true  that  the  agent  of  the  defendant  had  de- 
livered  thfc  horse  to  the   plaintiff  without   authority,  and 


JEFFERSON  v.  CHASE.  221 

against  the  positive  instructions  of  his  principal,  his  per- 
mitting him  to  remain  for  a  month  in  the  possession  of  the 
plaintiff,  accompanied  with  the  repeated  declaration  to  dif- 
ferent persons  during  that  time,  that  he  had  sold  him  to 
the  plaintiff,  was  a  subsequent  sanction  and  ratification  of 
the  act  of  his  agent,  and  rendered  the  delivery  and  posses- 
sion of  the  horse  by  the  plaintiff  rightful  and  lawful. 
Story  on  Contr.,  sees.  160,  161 ;  Add.  on  Conir.  396. 

Robinson,  for  the  defendant :  The  agent  in  this  case  was 
but  a  special  agent  to  deliver  the  horse  on  a  special  con- 
dition, which  he  violated.  The  delivery,  therefore,  was 
without  authority,  and  was  not  the  act  of  his  principal. 
But  even  if  it  was,  the  plaintiff  had  failed  to  comply  with 
the  conditions  on  which  the  agent  himself  had  delivered 
him.  The  defendant,  therefore,  could  not  be  presumed  to 
have  acquiesced  first,  in  the  breach  of  his  own  terms,  and 
afterwards  in  the  breach  of  the  plaintiff's  own  terms, 
fraudulently  suggested,  and  falsely  represented  by  him  to 
the  agent  as  later  instructions  from  the  defendant  in  regard 
to  the  matter.  If  the  payment  of  the  price  is  a  condition 
precedent  to  the  delivery  of  goods,  it  is  no  sale  until  the 
price  is  paid,  and  if  the  party  obtains  possession  of  the 
goods  without  payment,  his  possession  is  wrongful  and  he 
has  no  property  in  them,  for  the  property  of  the  seller  in 
them  is  not  changed.  Story  on  Contr.,  sec.  800;  3  Eng.  C. 
L.  R.  419 ;  13  Johns.  434.  If  the  possession  is  obtained 
by  fraud,  the  property  is  not  changed  ;  there  is  no  delivery, 
and  the  seller,  on  the  refusal  to  return  the  goods,  ma}' 
maintain  replevin  for  them.  Morris  on  Replevin,  237 ;  4 
Harr.  327. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  That  the 
plaintiff  was  bound  to  prove  that  the  horse  was  rightfully 
in  his  possession  as  his  property,  and  that  the  defendant 
wrongfully  took,  or  wrongfully  detained  him  from  his  pos- 
session ;  but  if  he  obtained  the  possession  of  him  by  false 
representations  to  the  agent,  his  possession  was  not  lawful, 


222  SUPERIOR  COURT. 

or  if  he  bought  the  horse  on  a  contract  to  pay  for  him 
before  delivery,  and  the  agent  delivered  him  without  the 
authority,  or  against  the  instructions  of  the  defendant, 
before  payment,  his  possession  was  not  rightful  and  the 
defendant  had  a  right  to  retake  him  again  into  his  posses- 
sion, provided  he  could  do  it  without  force  and  violence. 
And  as  the  agent  in  this  instance  was  not  a  general,  but 
only  a  special  agent  for  the  purpose  of  taking  care  of  the 
horse,  the  law  would  presume  no  authority  in  him  to  de- 
liver the  horse  to  another  without  actual  instructions  from 
the  defendant  for  that  purpose  ;  and  therefore,  it  was  in- 
cumbent upon  the  plaintiff  to  prove  such  instructions  from 
the  defendant,  in  order  to  make  the  delivery  the  act  of  the 
defendant  and  render  his  possession  under  it  rightful.  If 
the  defendant  acquiesced  in  the  delivery  of  the  horse  by 
his  agent  after  he  learned  that  it  had  been  done  contrary  to 
his  directions,  and  thereby  approved  and  ratified  his  act,  it 
made  the  possession  of  the  plaintiff  lawful  upon  the  terms 
on  which  he  received  him  from  the  agent ;  but  if  those 
terms  were,  that  he  was  merely  to  take  him  on  trial  and 
pay  for  or  return  him  by  a  certain  day,  which  he  failed  to 
do,  his  keeping  him  after  that  time  was  merely  by  the  per- 
mission of  the  defendant,  and  gave  him  no  right  of  posses- 
sion, and  no  right  of  property  in  the  horse  as  against  the 
claim  of  the  defendant,  unless  there  was  some  subsequent 
sale  or  agreement  between  the  parties  in  regard  to  the 
matter,  as  to  which,  however,  there  was  no  proof  before 
the  jury.  The  case,  therefore,  turned  entirely  on  the  right 
of  the  plaintiff  to  the  possession  of  the  animal  when  he 
was  taken  from  him  by  the  defendant,  and  should  be  de- 
cided accordingly. 


SPENCER  v.  LEWIS.  223 


Maria  J.  Spencer  v.  Nathaniel  Lewis. 

At  common  law  every  one  who  has  an  uncertain  estate  or  interest  in 
land,  if  his  estate  is  determined  by  act  of  God  before  severance  of  the 
crop,  is  entitled  to  the  whole  as  emblements,  or  it  goes  to  his  executor 
or  administrator.  If,  therefore,  the  husbartd  of  a  tenant  for  life  is  in 
possession  and  tills  the  land,  and  she  dies  before  the  crop  is  gathered, 
he  takes  the  whole  as  emblements,  and  it  is  not  a  case  for  apportion- 
ment under  the  statute,  which  only  applies  in  cases  of  demise,  as  where 
the  tenant  for  life  has  rented  out  the  land,  and  his  life  estate  determines 
during  the  tenancy. 

A  case  stated.  James  Spencer,  by  his  will,  devised  a 
tract  of  land  in  Little  Creek  Hundred  to  his  wife,  Celia 
Spencer,  for  the  term  of  her  life,  and  after  her  death  to 
Maria  J.  Spencer,  the  plaintiff,  in  fee.  Celia  Spencer,  the 
devisee  for  life,  afterwards  married  Nathaniel  Lewis,  the 
defendant,  and  she  and  her  said  husband  were  in  posses- 
sion of  the  said  land  and  residing  upon  it,  when,  on  the 
7th  day  of  October,  1854,  the  said  Celia  died,  there  then 
being  a  crop  of  Indian  corn  growing  on  the  ground,  planted 
and  tilled  by  Nathaniel  Lewis,  the  defendant. 

The  plaintiff,  the  devisee  in  remainder,  demanded  a  share 
of  the  crop  of  corn  for  that  year,  as  a  case  for  apportion- 
ment of  rent,  under  the  act  of  Assembly,  Revised  Code, 
chap.  120,  sec.  15,  pp.  422,  423  ;  and  the  question  submitted 
to  the  Court  was,  whether  she  was  entitled  to  a  share  of 
the  crop  for  that  year,  or  the  defendant,  as  the  husband  of 
the  devisee  for  life,  was  entitled  to  the  whole  of  it,  <is  em- 
blements. If  the  Court  should  be  of  the  former  opinion, 
judgment  is  to  be  entered  for  the  plaintiff,  but,  if  not,  for 
the  defendant. 

The  Court  gave  judgment  for  the  defendant.  It  is  not  a 
case  for  apportionment  of  rent,  under  the  act  of  Assembly, 
because  there  was  no  demise  or  renting  of  the  premises. 
The  husband  of  the  devisee  for  life  was  in  possession  and 
residing  with  his  wife  on  the  land  at  the  time  of  her  death, 


224  SUPERIOR  COURT. 

in  October,  1854,  and  planted  and  tilled  the  crop  for  that 
year ;  and  was  therefore  entitled  to  the  whole  of  the  crop 
upon  her  death,  as  emblements.  The  role  of  law  being 
that  "  every  one  who  has  an  uncertain  estate  or  interest  in 
land,  if  his  estate  determines  by  act  of  God  before  seve- 
rance of  the  crop,  shall  have  the  emblements,  or  they  go 
to  his  executor  or  administrator;  as  if  a  tenant  for  life 
sows  the  land  and  die  before  severance.  So  if  a  man 
seized  in  right  of  his  wife  sows,  and  die  before  severance, 
his  executor  shall  have  the  emblements ;  so  if  the  wife  die 
before  severance  the  husband  shall  have  them."  2  Com. 
Dig.  Bieiis  (G.  2),  p.  141,  Co.  L.  55  b.  This  principle  of  law 
is  only  changed  and  modified  by  our  statute  in  cases  of  de- 
mise or  renting,  by  such  persons,  and  the  rule  for  appor- 
tionment only  applies  in  such  cases;  and  not  where  the 
person  seized  of  the  uncertain  estate  is  in  possession  and 
tills  the  land,  and  dies  before  severance  of  the  crop. 

C.  S.  Lay  ton,  for  plaintiff. 
Moore,  for  defendant. 


Lot  Rawlins,  Appellant,  v.  Robert  D.  Buttel  and  Mary 
his  wife,  late  Mary  Smith,  widow  of  William  W.  Smith, 
deceased,  Respondents. 

A  wife  lived  with  an  adulterer  in  a  state  of  separation  from  her  husband 
until  his  death,  but  he  was  profligate  and  intemperate  and  frequently 
inflicted  personal  violence  upon  her,  and  finally  abandoned  her  several 
years  before  his  death  and  lived  in  adultery  with  another  woman. 
Held  that  she  did  not  thereby  forfeit  her  dower. 

A  demandant  in  dower  out  of  lands  in  the  hands  of  a  purchaser,  is  only 
entitled  to  the  assignment  of  a  third  according  to  the.  value  of  the  land 
at  the  time  of  the  purchase,  and  not  according  to  the  enhanced  value 
produced  by  improvements  made  at  the  expense  of  the  purchaser  upon 
them  subsequent  to  the  purchase. 

This  case  came  up  on  appeal  and  objections  taken  in 


RAWLINS  v.  BUTTEL  AND  WIFE.  225 

the  nature  of  a  bill  of  exceptions,  from  a  decree  of  the  Or- 
phans' Court  of  Sussex  County,  on  the  petition  of  Robert 
D.  Buttel  and  Mary  his  wife,  for  the  assignment  of  her 
dower  out  of  certain  lands  formerly  owned  by  William  W. 
Smith,  her  late  husband  during  their  marriage,  and  then 
in  the  tenure  and  possession  of  Lot  Rawlins,  the  appellant, 
who  had  since  purchased  them.  The  petition  of  the  re- 
spondents set  forth  that  the  said  Mary  was  formerly  the 
wife  of  the  said  William  W.  Smith,  deceased,  and  that  he 
was  seized  in  fee  of  the  lands  in  question  during  their 
marriage,  and  that,  whilst  he  was  so  seized  of  them  and 
after  their  marriage,  a  judgment  was  recovered  in  the 
Superior  Court  of  the  County  against  Smith,  on  which  the 
lands  were  sold  by  virtue  of  execution  process  to  George 
W.  Green,  at  public  sale,  who  afterwards  sold  and  con- 
veyed them  to  Lot  Rawlins,  the  appellant.  To  this  peti- 
tion the  following  pleas  were  entered  in  the  Orphans' 
Court.  1.  That  the  said  William  W.  Smith  was  never 
seized  of  any  estate  in  the  premises  whereof  the  said 
Mary  was  entitled  to  be  endowed.  2.  That  the  said  Mary 
eloped  from  }ier  then  husband,  the  said  William  W.  Smith, 
in  his  lifetime  and  after  their  said  marriage,  and  lived  in 
adultery  with  the  said  Robert  D.  Buttel  during  the  resi- 
due of  the  lifetime  of  the  said  Smith,  and  that  the  latter 
never  became  reconciled  to  her,  or  cohabited  with  her 
afterwards.  3.  That  valuable  improvements  had  been 
erected  thereon  at  great  cost  and  expense  to  him  by  the 
said  Rawlins,  since  the  purchase  and  possession  of  the  pre- 
mises by  him:  on  all  of  which  the  petitioners  took  issue 
in  the  Court  below. 

On  the  trial  of  the  case  before  the  Orphans'  Court  the 
facts  alleged  in  the  second  and  third  pleas  were  sustained 
by  the  proof  adduced  ;  but  the  evidence  in  reply  on  the 
second  plea  showed  that  Smith  also,  in  his  lifetime  and 
after  the  marriage,  had  been  guilty  of  adultery  aud  co- 
habited with  another  woman,  and  by  cruelty,  neglect,  and 
abandonment  of  his  wife,  had  to  a  great  degree  con- 
strained her  to  leave  him  and  to  seek  support  by  her  own 


226  SUPERIOR  COURT. 

exertions  among  strangers;  for  which  reason  the  Court 
overruled  that  together  with  the  other  pleas,  and  decreed 
in  favor  of  the  petitioners,  and  ordered  the  assignment  of 
dower  according  to  the  prayer  of  the  petition.  The  ex- 
ceptions taken  to  the  decree  and  order  for  the  assignment 
of  the  dower  on  the  appeal  were,  1.  Because  the  Court 
below  had  disallowed  the  plea  of  improvements  erected 
on  the  premises  by  Rawlins,  at  an  expense  proved  of  $600, 
since  his  purchase  of  them,  and  ordered  the  assignment  of 
one  entire  third  part  thereof,  without  reference  to  the  im- 
proved value  of  the  premises  by  reason  of  that  expendi- 
ture. 2.  Because  the  Court  below  admitted  evidence  of 
acts  of  adultery  on  the  part  of  the  said  William  W.  Smith, 
after  as  well  as  before  the  elopement  of  the  said  Mary 
from  him,  and  without  any  replication  of  said  facts.  3. 
Because  the  said  Court  decreed  the  one-third  part  of  the 
said  lands  and  premises  to  be  assigned  to  the  said  Mary 
Buttel  for  the  term  of  her  natural  life,  instead  of  to  the 
said  Robert  D.  Buttel,  in  right  of  the  said  Mary  Buttel, 
for  the  term  of  her  life. 

E.  D.  Cullen,  for  appellant :  It  is  provided  in  the  dower 
act,  Rec.  Code,  290,  if  a  wife  willingly  leaves  her  husband 
and  elopes  with  an  adulterer,  she  forfeits  her  dower,  with 
or  without  any  fault  or  misconduct  on  the  part  of  her  hus- 
band ;  for  no  misconduct  of  his  can  excuse  her  for  will- 
ingly leaving  him  and  going  with  an  adulterer.  2  Bac. 
Abr.  384;  Park,  on  Dower,  11  Law  Libr.  102;  19  Eng.  C. 
L.  R.  94;  6  T.  R.  603;  Crabb  on  Real  I*rop.,  sec.  1189;  4 
Esp.  Rep.  237  ;  Bishop  on  Mar.  iV  Dh\,  sec.  243.  No  ob- 
scenity 6r  indecency  on  the  part  of  the  husband  can  ex- 
cuse a  wile  for  committing  adultery.  Bish.  on  Mar.  .f 
Dir.,  sees.  422,  423.  If  a  purchaser  improve,  the  dower 
shall  be  of  only  one-third  of  the  land  according  to  its  value 
at  the  time  of  the  purchase;  but  if  the  heir  improve,  the 
widow  shall  have  one-third  of  the  improvements,  because 
the  heir  makes  them  after  the  widow's  title  of  dower  has 


RAWLINS  v.  BUTTEL  AND  WIFE.  227 

completely  accrued.     2  Bac.  Abr.  368;  3  Mass.  Rep.  347  ; 
Green  v.  Tenvent,  2  Harr.  Rep.  336. 

C.  S.  Layton,  for  respondents :  This  Court  will  not  re- 
verse the  decree  below  entirely,  even  if  it  should  be  of 
opinion  that  it  is  erroneous  on  the  last  ground  taken;  but 
will  enter  such  a  decree  on  the  appeal,  as  the  Court  below 
in  its  judgment  should  have  rendered.  On  the  main  ques- 
tion, our  statute  has  gone  far  beyond  the  statute  of  West- 
minster and  the  authorities  cited  on  the  other  side.  Adul- 
tery was  not  a  bar  to  dower  at  common  law,  and,  in  this 
State,  the  defence  to  the  claim  must  depend  upon  the  pro- 
visions of  our  own  statute  on  the  subject,  and  the  only 
provision  which  it  contains  in  relation  to  it,  is  as  follows: 
"If  a  wife  willingly  leave  her  husband,  and  go  with  an 
adulterer,  or  willingly  live  in  adultery  in  a  state  of  separa- 
tion from  her  husband,  not  occasioned  by  his  fault,  in 
either  case,  unless  her  husband  be  reconciled  to  her,  and 
suffer  her  to  dwell  with  him,  she  shall  forfeit  her  dower 
and  all  demands,  as  his  widow,  upon  his  real  or  personal 
estate,  and  any  estate,  charge,  or  benefit  settled  upon  her, 
or  in  trust  for  her  in  lieu  of  dower."  It  is  manifest,  on 
reading  this,  that  the  present  case  falls  under  the  second 
and  not  under  the  first  branch  of  the  provision.  For  the 
wife  in  this  case  did  not  willingly  leave  her  husband  and 
go  with  an  adulterer, — that  is  to  say,  she  did  not  elope  and 
live  with  an  adulterer;  but  the  proof  is  that  he  left,  her 
after  taking  her  to  Philadelphia,  abandoned  her  to  her 
own  exertions  for  a  support,  and  to  the  lures  and  tempta- 
tions of  a  populous  city,  and  afterwards  lived  himself  in 
adultery  with  another  woman.  It  is  also  in  proof  that  he 
was  guilty  of  adultery,  and  frequently  inflicted  personal 
and  cruel  violence  upon  her  before  they  went  to  the  city. 
He  was  profligate  and  intemperate  in  the  highest  degree, 
and  abandoned  her  to  the  world,  and  for  several  years 
before  his  death  neither  sought  her  society,  or  made  <any 
effort  to  maintain  her.  It  was  in  this  state  of  abandon- 
ment, and  long  after  he  left  her  in  Philadelphia,  that   she 


228  SUPERIOR  COURT. 

appears  to  have  made  the  acquaintance  of  her  present 
husband,  and  formed,  it  seems,  an  illicit  connection  with 
him.  Taking  the  evidence  in  its  strongest  aspect,  there- 
fore, against  her,  it  amounts  to  nothing  more  than  a  case 
of  a  wife  willingly  living  in  adultery,  in  a  state  of  separa- 
tion from  her  husband,  occasioned,  however,  by  his  own 
fault  and  gross  misconduct,  and  which  works,  of  course, 
under  the  operation  of  our  statute,  no  forfeiture  of  dower. 
And  this  was  the  view  which  the  Court  below  took  of  it. 

The  Court  affirmed  the  decree  below  awarding  the  dower; 
but  reversed  and  annulled  the  order  for  the  assignment  of 
it,  on  the  ground  that  it  should  have  been  for  one-third  of 
the  lands  and  premises  according  to  their  condition  and 
value  at  the  time  of  the  purchase  of  them  by  the  appel- 
lant; because  the  respondents  were  not  entitled,  in  the 
assignment  of  the  dower,  to  any  benefit  from  the  improve- 
ments, or  the  enhanced  value  of  the  land,  erected  or  pro- 
duced at  the  cost  and  expense  of  the  appellant  subsequent 
to  his  purchase  of  it. 


Mark  J.  Davis  v.  George  P.  White,  Sheriff. 

When  a  sheriff  justifies  taking  goods  under  &fi.fa.  he  is  not  bound  to  set 
out  the  judgment  in  his  plea,  or  to  plead  anything  more  than  the  exe- 
cution under  which  he  seized  them. 

In  an  action  of  replevin  to  recover  goods  taken  in  execution  on  &fi  fa. 
issued  against  two  parties,  lately  trading  together  as  partners,  and  levied 
on  the  goods  of  a  third  person  as  a  partner  with  one  of  the  defendants 
in  the  execution,  the  other  defendant  is  not  a  competent  witness  to 
prove  the  interest  and  partnership  of  his  co-defendant  in  the  goods. 

"What  constitutes  a  partnership. 

On  an  execution  against  a  single  partner  it  is  the  right  and  duty  of  the 
sheriff  to  spizc  in  execution  the  whole  of  the  partnership  goods,  and  to 
sell  the  undivided  share  and  interest  of  the  partner  in  the  goods,  and  if 
he  deems  it  advisable,  to  prevent  their  beinij  wasted  or  carried  away, 
he  has  a  right  to  take  the  goods  into  his  actual  custody  and  possession, 
and  the  other  partner  cannot  maintain  a  replevin  for  them. 


DAVI8  v.  WHITE.  229 

In  such  an  action,  if  the  goods  have  been  replevied,  the  sheriff  is  entitled 
to  a  verdict  for  the  return  of  the  goods,  and  if  a  return  cannot  be  had, 
to  a  verdict  for  damages  to  the  value  of  the  partner's  share  or  interest 
in  them. 

Action  of  replevin  for  a  stock  of  goods  and  merchandise 
replevied  and  delivered  to  the  plaintiff.  The  principal  de- 
fence relied  upon  at  the  trial  was,  that  the  goods  in  ques- 
tion were  the  property  of  Nutter  L.  Davis  and  Mark  J. 
Davis,  the  plaintiff,  as  partners  in  business,  and  the  de- 
fendant justified  the  taking  of  the  goods  on  certain  writs 
of  testatum  fi.  fa.  from  the  Superior  Court  for  Kent  County, 
at  the  suit  of  several  parties,  against  Nutter  L.  Davis  and 
Andrew  J.  McColley. 

The  evidence  in  regard  to  the  alleged  partnership  of 
Mark  J.  Davis  and  Nutter  L.  Davis  in  the  mercantile  busi- 
ness was  contradictory  and  conflicting.  For  the  plaintiff, 
it  was  proved  that  the  business  was  conducted  in  the  name 
of  Mark  J.  Davis;  that  the  advertisements  of  the  store, 
the  bills  and  receipts  for  goods  bought  as  well  as  sold, 
were  made  and  given,  and  the  books  were  kept  in  his 
name  alone.  For  the  defendant  it  was  proved  that  Nutter 
L.  Davis  was  the  brother  of  the  plaintiff,  and  was  as  much 
and  as  actively  employed  in  the  store,  and  took  as  promi- 
nent a  part,  and  exercised  apparently  as  much  authority 
and  discretion  in  the  transaction  of  business,  in  all  respects, 
as  the  plaintiff,  and  was  dealt  with  and  regarded  by  many 
as  having  the  same  interest  in  it,  and  as  being  a  partner 
with  the  plaintiff  in  the  store.  The  defendant  then  offered 
in  evidence  the  writs  of  testatum  f.  fa.,  on  which  he  had 
seized  the  goods. 

C.  S.  Ijayton,  for  the  plaintiff,  objected  to  their  admissi- 
bility without  first  proving  the  judgments  on  which  they 
were  issued.  The  recovery  of  the  judgments  was  not  even 
alleged  in  the  plea,  which  should  have  been  formally  stated 
and  set  out  in  the  plea.  Mat  hew  v.  threw,  1  Salk.  107;  State 
».«  of  Caatcy  v.  Lofanul,  2  Ilarr.  343;  Trultt  v.  Rev'dl,  4 
Harr.  71. 


230  SUPERIOR  COURT. 

E.  D.  Cullen,  for  the  defendant.  When  the  sheriff,  or 
his  deputy,  justifies  the  taking  of  goods  under  a  fi.  fa.,  he 
is  not  bound  to  set  forth  the  judgment,  or  plead  anything 
more  than  the  execution.  Harr.  Entries,  142;  3  Ch.  PL 
1135,  1132,  new  edition. 

77ie  Court  overruled  the  objection  and  admitted  the  evi- 
dence. The  sheriff  was  not  bound  to  set  forth  the  judg- 
ments, as  the  writs  delivered  to  him  were  his  authority  for 
the  levy  ;  but  if  the  plaintiff  had  had  occasion  to  rely  upon 
them  in  the  action  to  maintain  his  right  to  recover,  he 
would  have  been  obliged  to  set  out  the  judgments. 

Andrew  J.  McColley  was  then  called  as  a  witness  for  the 
defendant,  to  prove  the  interest  and  partnership  of  Nutter 
L.  Davis  in  the  goods,  but  he  was  objected  to  on  the  other 
side,  and  was  excluded  by  the  Court,  on  the  ground  that 
he  was  jointly  bound  with  Nutter  L.  Davis  in  the  judg- 
ments and  the  writs  thereon,  and  as  he  might  have  the 
whole  debt  himself  to  pay,  he  had  an  interest  to  make  out 
the  available  means  of  his  co-debtor  liable  to  the  execu- 
tions as  large  as  possible,  and  to  establish  the  property  of 
Nutter  L.  Davis  in  the  goods,  and  was  therefore  to  gain  or 
lose  by  the  event  of  the  suit. 

The  counsel  for  the  plaintiff  insisted,  in  the  argument  to 
the  .jury,  that  Nutter  L.  Davis  had  no  interest  or  property 
in  the  goods,  that  the  plaintiff  was  the  sole  owner  of  them, 
and  that  no  partnership  existed  between  them.  That  the 
existence  of  the  partnership  was  alleged  on  the  other  side, 
and  upon  the  defendant  therefore  devolved  the  duty  of 
establishing  it.  As  to  what  will  constitute  a  partnership, 
he  cited  Gilpin  v.  T<m[J>  <t  ah,  A  Harr.  l!*l  ;  Dceeham  v. 
IhJJ,  3  Harr.  485;  0>l.  on  Partn.,  sees.  822,  828  :  and  a-ke<l 
the  Court  to  charge  the  jury,  even  if  they  should  be  satis- 
tied  that  there  was  a  partnership,  as  alleged,  that  the  sheriff 
had  no  right  or  authority,  under  the  writs  against  one  of 
the  partners,  to  seize  and  take  the  whole  of  the  goods  and 


DAVIS  v.  WHITE.  231 

to  turn  the  plaintiff  out  of  the  possession  of  his  share  of 
them,  and  that  he  was  a  trespasser  as  against  him  in  doing 
so ;  because  there  was  a  distinction  between  levying  upon 
the  undivided  share  and  interest  of  an  individual  partner, 
and  taking  into  his  actual  possession  the  whole  partnership 
goods.  15  Mass.  Pep.  82 ;  Col.  on  Partn.,  see.  822.  He  could 
only  sell  the  undivided  interest  of  the  partner  bound  by 
the  execution,  and,  as  the  seizure  under  the  writ  was  only 
a  seizure  in  law,  he  could  seize  no  more  than  he  could  sell, 
which  was  merely  the  undivided  interest  of  that  particular 
partner  in  the  property. 

For  the  defendant  it  was  contended  that  partnerships 
were  usually  formed  by  private  articles  of  agreement  be- 
tween the  partners,  which,  for  purposes  of  their  own  might 
be  entirely  confined  to  their  breasts,  in  which  case  it  could 
only  be  known  to  and  inferred  by  others  from  facts  and 
circumstances,  such  as  their  acting  together  as  principals 
and  conducting  their  business  as  partners;  and  all  the  evi- 
dence in  this  case  was  of  a  character  to  sustain  that  infer- 
ence ;  for  every  witness  had  stated  that  the  one  appeared 
to  be  as  much  a  principal  and  an  owner  in  the  conduct  and 
management  of  the  business  as  the  other.  And  if  the 
plaintiff  was  a  partner  in  the  business  with  Nutter  L. 
Davis,  that  the  sheriff  had  not  only  the  right,  but  it  was 
his  duty  to  seize  and  sell  the  whole  stock  of  goods  belong- 
ing to  the  partnership,  and  in  which  the  latter  as  one  of 
the  defendants  in  the  writs  had  any  share  or  interest ;  for 
one  part-owner  or  tenant  in  common  could  not  maintain 
an  action  of  replevin  against  another  part-owner  or  tenant 
in  common,  or  even  against  a  third  party  for  seizing  and 
taking  away  their  joint  property.  2  Ihnr.  129;  2  Muss. 
407;  2  Wheat.  Sclir.  A.  P.  273;  12  Wend.  131  :  14  Johns. 
84;  Col.  on  Partn.  709;  15  Johns.  179;  24  Wend.  389. 
The  sheriff  was  bound  to  seize  the  whole  of  the-  goods  in 
execution,  and  to  sell  and  deliver  the  interest  of  the  part- 
ner in  the  whole  of  them.  4  Hill,  158.  And  being  bound 
to   seize   the  whole,  if  the  plaintiff  and  his  brother  were 


232  SUPERIOR  COURT. 

partners,  the  defendant  was  entitled  to  a  return  of  the 
goods,  and  if  return  could  not  he  made,  to  a  verdict  for 
damages  to  the  value  of  the  whole  goods. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  The  main 
question  before  the  jury  was,  whether  Nutter  L.  Davis,  one 
of  the  defendants  in  the  writs  of  execution,  was  a  copart- 
ner with  Mark  J.  Davis,  the  plaintift  in  the  present  action, 
in  the  stock  of  goods  and  merchandise  seized  by  the  de- 
fendant as  sheriff.  What  will  constitute  a  partnership  is 
a  matter  of  law,  but  whether  it  exists  according  to  the 
legal  definition,  is  a  question  of  fact  to  be  determined  by 
the  jury.  Where  the  suit  is  between  the  partners  them- 
selves, strict  proof  of  the  existence  of  the  partnership,  of 
the  community  of  profits  and  losses,  and  of  the  contract  of 
copartnership  itself,  is  required.  But  when  the  suit  is  by 
a  third  person  against  another  who  is  alleged  to  be  a  part- 
ner, as  in  this  case,  the  proof  required  was  different.  In 
such  a  case,  all  the  facts  and  circumstances  from  which 
the  existence  of  a  partnership  may  be  fairly  and  reasona- 
bly inferred  are  to  be  considered  by  the  jury  ;  as,  where 
the  party  sought  to  be  charged  in  the  action  as  a  partner 
has  admitted  the  alleged  partnership,  or  has  dealt  with 
others  as  a  member  of  the  partnership,  or  has  held  him- 
self out  in  any  way,  or  has  represented  himself,  or  obtained 
or  sought  to  obtain  credit  for  himself  or  the  firm,  as  a  part- 
ner, or  has  jointly  participated  in  the  profits  of  the  firm,  a 
partnership  may  be  inferred.  Gilpin  v.  Temple,  4  Harr. 
V.^l.  But  the  public  advertisements  of  the,  store  in  the 
name  of  the  plaintiff  alone,  or  proof  that  the  bills  for 
goods  purchased,  or  sold,  and  the  receipts  given  and 
taken,  that  the  books  were  kept  and  that  the  whole  busi- 
ness was  transacted  and  conducted  in  the  name  and  upon 
the  credit  and  responsibility  of  the  plaintiff  alone,  if  done 
in  good  faith,  would  be  sufficient  to  establish  his  sole  right 
to  the  goods  in  question,  and  if  there  was  no  fact  proved 
by  the  defendant  to  impeach  or  rebut  the  presumption 
arising    from    these    circumstances,  the  plaintiff  was  en- 


DAVIS  v.  WHITE.  233 

titled  to  recover.  If,  however,  the  jury  should  believe  from 
the  evidence  before  them,  that  Nutter  L.  Davis  was  a  part- 
ner with  the  plaintiff  in  the  store  and  the  business,  and  had 
a  share  or  interest  as  such  in  the  goods  seized  in  execution, 
the  defendant  would  be  entitled  to  a  verdict  for  the  return 
of  the  goods,  or  in  case  a  return  of  the  goods  could  not  be 
had,  to  a  verdict  for  damages  to  the  value  of  such  share  and 
interest.  If  Nutter  L.  Davis  was  a  partner  with  the  plain- 
tiff in  the  goods,  it  was  the  right  and  duty  of  the  defen- 
dant as  sheriff  to  seize  the  whole  of  them  on  the  execu- 
tions, and  to  sell  his  undivided  share  and  interest  in  them, 
in  which  case  the  purchaser  would  become  a  part-owner 
or  tenant  in  common  with  the  plaintiff  in  them  ;  and  for 
this  purpose,  he  had  a  right,  if  he  deemed  it  advisable  to 
prevent  their  being  wasted  or  carried  away,  to  take  the 
whole  of  them  into  his  actual  custody  and  possession,  and 
the  plaintiff  being  but  a  part-owner  as  a  partner  in  them, 
and  because  they  were  liable  to  such  seizure,  could  not 
maintain  an  action  of  replevin  for  them  against  him. 

The  plaintiff  had  a  verdict. 

C.  S.  Lay(cm,  for  plaintiff. 

W.  Sauhbimj  and  E.  D.  Cullcn,  for  defendant. 

Notk. — Hous(o7i,  J.,  did  not  sit  in  this  case,  having  been  of  counsel  for 
the  plaintiff. 


16 


234  SUPERIOR  COURT. 


McColley  &  Brothers,  for  the  use  of  Mitchell  Warren, 
v.  William  R.  Hickman. 

In  an  action  on  the  recognizance  against  a  surety  in  an  appefel  from  a 
justice  of  the  peace,  it  is  sufficient  to  aver  in  the  declaration  that  the 
suit  below  being  for  debt,  was  for  a  cause  of  action  within  the  jurisdic- 
tion of  the  justice  of  the  peace.  If  the  appeal  be  referred  out  of  court 
under  a  rule  of  reference,  it  will  not  release  the  surety  from  his  liability 
on  the  recognizance  ;  and  it  is  not  necessary  to  aver  in  the  narr  that  he 
consented  to  the  reference.  Neither  is  it  necessary  to  allege  in  the  narr, 
that  the  justice  of  the  peace  had  jurisdiction  of  the  person  of  the  defen- 
dant in  the  action  before  him. 

This  was  an  action  of  debt  on  a  recognizance  entered 
into  by  William  R.  Hickman,  the  defendant,  as  the  surety 
of  William  and  Benjamin  Collins  (n.)  on  appeal  from  a 
judgment  recovered  by  McColley  &  Brothers  for  the  use 
of  Mitchell  Warren  against  them  before  a  justice  of  the 
peace  for  sixty-eight  dollars  and  costs.  The  declaration  in 
the  action  set  forth  the  recovery  of  the  judgment  before 
Lemuel  B.  Shockley,  Esq.,  one  of  the  justices  of  the  peace 
for  the  county,  for  a  cause  of  action  within  the  jurisdiction 
of  the  said  justice  of  the  peace,  from  which  the  defendant 
appealed  in  due  time,  and  that  William  R.  Hickman,  the 
defendant  in  this  action,  thereupon  became  surety  for  them 
in  the  appeal.  That  after  the  appeal  was  entered  in  this 
Court,  it  was  referred  by  the  consent  of  parties  on  a  rule 
of  reference  out  of  court,  in  which  the  referees  made  a 
report  and  return  at  the  next  term  in  favor  of  the  plaintiffs 
against  the  defendants  for  eighty-eight  dollars,  on  which 
this  Court  gave  judgment  for  that  amount  and  costs  ;  that 
an  execution  was  afterwards  issued  on  the  judgment  against 
the  defendants,  to  which  the  sheriff  made  return  of  nulla 
hoiiu,  and  thereupon  this  action  was  commenced.  To  this 
declaration  the  defendant  demurred  generally:  first,  be- 
cause the  cause  of  action  was  referred  out  of  court  after 
the  appeal  was  entered,  without  any  averment  that  the  de- 
fendant as  such  surety  consented    to  the  reference  ;  and 


McCOLLEYS  use  of  WARKEN  v.  HICKMAN.        235 

secondly,  because  it  was  not  averred  with  sufficient  cer- 
tainty that  the  justice  of  the  peace  had  jurisdiction  of  the 
cause  of  action  below. 

E.  D.  Cidlen,  for  the  defendant :  On  the  first  point,  as  to 
the  discharge  of  the  defendant  as  surety  by  the  rule  of  re- 
ference, any  variance  or  alteration  in  the  contract  of  bail 
will  release  the  bail.  To  declare  in  a  different  form  of 
action  from  that  in  which  the  bail  is  taken,  discharges  the 
bail,  and  it  has  been  so  decided  in  this  Court.  Waples  v. 
Derickson,  1  Harr.  134.  And  to  refer  the  case  has  the  same 
effect.  Caldw.  on  Arbitra.  45.  The  legal  maxim  on  this 
point  is  non  in  hoec  fccdera  veni,  and  he  contended  that  a  re- 
ference out  of  court  under  a  rule  of  reference  under  our 
statute,  releases  the  bail,  and  the  principle  has  been  ruled 
and  recognized  by  numerous  authorities  in  other  quarters. 
6  Wend.  236;  18  Johns.  22;  6  Cow.  399;  2  Wend.  505  ;  13 
Wend.  293 ;  1  Hill,  69 ;  15  Eng.  C.  L.  R.  42 ;  3  Sound/.  Rep. 
4;  3  Harr.  Dig.  5846  ;  1  Law  Libr.  72;  10  Law  Libr.  233; 
17  Mass.  591 ;  3  Wend.  54 ;  6  Wend.  236. 

On  the  second  point,  the  jurisdiction  of  the  justice  of  the 
peace  being  a  special  and  limited  jurisdiction,  it  ought  to 
be  alleged  with  certainty  in  the  declarations  that  he  had 
jurisdiction  of  the  cause  of  action  and  of  the  person  of  the 
defendant,  and  if  it  is  not  done,  it  is  a  good  ground  of  ob- 
jection on  a  general  demurrer.  1  Cromp.  31eas.  §■  Ros. 
Rep.  301.  In  pleading  the  jurisdiction  of  a  court  of  special 
and  limited  jurisdiction,  a  general  averment  merely  that 
the  cause  of  action  was  within  the  jurisdiction,  is  not  suf- 
ficient; the  facts  which  are  necessary  to  bring  it  within 
the  jurisdiction,  must  be  stated.  9  Wend.  233;  16  Wend. 
562;  6  Cow.  221;  6  Wend.  428.  And  the  jurisdiction  of 
the  person  of  the  defendant  must  also  be  alleged.  7  Hill, 
35.  For  this  is  not  to  be  presumed,  as  nothing  is  presumed 
in  favor  of  a  special  or  limited  jurisdiction,  but  it  must  be 
averred  and  proved.  7  Hill,  39,  44,  in  note;  3  Const.  Rep. 
lit:',;  5  Hill,  285;  4  Mass.  641;  41  Eng.  C.  L.  R.  825;  3 
Harr.  517;  4  Harr.  280. 


236  SUPERIOR  COURT. 

C.  S.  Ixiyton,  for  the  plaintiffs :  It  is  averred  in  the  narr 
that  the  justice  of  the  peace  had  jurisdiction  of  the  cause 
of  action  and  of  the  person  of  the  defendant,  for  it  is  alleged 
that  the  plaintiffs  recovered  judgment  against  the  defen- 
dant for  their  debt,  fie.  But  it  was  neither  necessary  nor 
proper  to  incumber  the  record  in  this  case  with  the  pro- 
ceedings in  that  case  below,  or  to  set  out  the  facts  which 
gave  the  jurisdiction.  It  was  sufficient  to  allege  simply 
that  it  was  for  a  cause  of  action  within  the  jurisdiction  of 
the  justice.  1  Ch.  PI.  356;  2  Ibid.  220;  1  Wil.  316;  1 
Stiund.  92,  note  2 ;  Pitt  v.  Knight,  Carth.  85  ;  Coin.  Diy.  title 
Plead,  w.  2,  sec.  12;    Thumps.  Entries,  118. 

On  the  other  point  the  surety  was  not  released  by  the 
reference  of  the  case  under  a  rule  out  of  court.  The  prin- 
ciple and  the  reason  of  the  rule  of  law  on  which  bail  or  a 
surety  is  released  from  his  obligation  is,  because  he  is  put 
in  a  worse  condition  by  the  accommodation  or  arrange- 
ment;  but  he  is  not  discharged  when  he  is  not  placed  in  a 
worse  condition,  or  is  not  exposed  to  additional  danger  or 
loss  in  consequence  of  it.  But  how  was  the  surety  in  this 
case  damnified  or  placed  in  a  worse  condition  by  the  re- 
ference? The  condition  of  the  recognizance  was  to  prose- 
cute the  appeal  with  effect,  not  by  any  time,  or  without 
delay;  and  if  such  had  been  the  case,  a  more  speedy  deci- 
sion and  termination  of  the  appeal  was  obtained  by  the 
reference  than  could  have  been  had  without  it.  The  reason 
why  bail  is  discharged  by  giving  time  to  his  principal  is 
because  the  bail  has  a  right  to  surrender  his  principal  at 
the  return  of  the  writ,  and  he  may  be  put  in  a  worse  situa- 
tion by  it.  But  this  does  not  apply  in  the  case  of  a  surety 
in  replevin.  5  Taunt.  614;  6  Taunt.  37!';  5  T.  H.  277;  1 
Eiaj.  C.  L.  R.  16!);  4  Taunt.  456;  2  E,aj.  C,  L.  R.  277;  2 
llarr.  190;  16  Era).  C.  A  R.  92. 

The  Court  gave  judgment  for  the  plaintiffs  against  the 
defendant  on  the  demurrer.  On  the  first  ground  of  objec- 
tion taken  to  the  declaration,  that  the  surety  in  the  appeal 
was   released  bv  the   reference  of    the  case  out   of  court 


McCOLLEYS  use  of  WARREN  v.  HICKMAN.     237 

under  a  rule  of  Court,  the  case  cited  from  18  Johns.  22, 
furnishes  the  correct  distinction  between  it  and  the  other 
cases  cited  in  support  of  the  objection,  and  is  directly 
against  the  demurrant.  Had  the  appeal  been  submitted  to 
arbitration  by  the  parties  before  it  was  entered  here,  or 
without  being  referred  under  a  rule  of  Court,  pursuant,  to 
the  statute,  it  would  have  discharged  the  surety  from  the 
obligation  of  the  recognizance;  for  it  would  have  been 
incompatible  with  the  engagement  of  the  surety  in  the 
recognizance.  And  that  is  the  extent  to  which  the  other 
cases  cited  go.  But  the  case  in  18  Johns,  recognizes  that 
the  effect  is  otherwise  when  the  base  is  referred  under  a 
rule  of  reference  out  of  Court,  because  it  is  one  of  the 
usual  methods  prescribed  by  statute,  and  warranted  by 
long  and  established  practice,  of  prosecuting  suits  here; 
and  although  a  case,  when  referred  under  a  rule,  is  said  to 
be  referred  out  oj 'Court,  yet  it  is  not  in  contemplation  of 
law  or  in  point  of  fact  literally  out  of  Court,  for  it  is  still 
subject  to  the  control  of  the  Court;  and  the  report,  when 
made,  must  be  returned  here  for  confirmation,  and  has  no 
conclusive  effect  until  the  judgment  of  the  Court  is  pro- 
nounced upon  it.  It  is,  therefore,  nothing  more  than  sub- 
stituting, by  consent  of  parties,  another  and  a  usual  mode 
of  trying  the  case  here  in  lieu  of  a  trial  at  bar  before  the 
Court  and  jury,  and  has  practically  the  same  legal  opera- 
tion and  effect;  and  therefore  it  could  not  be  held  to  dis- 
charge the  surety  from  the  obligation  of  his  recognizance 
that  the  appeal  should  be  prosecuted  with  effect,  and  that 
any  judgment  rendered  against  the  appellant  here  upon 
the  appeal  should  be  satisfied. 

On  the  other  point  we  are  of  opinion  that  it  was  sufficient 
in  this  case  to  aver  in  the  narr  that  the  suit  below  was  tor 
a  cause  of  action  within  the  jurisdiction  of  the  justice  of 
the  peace.  Being  alleged  to  be  a  debt  under  one  hundred 
dollars,  and  that  he  gave  judgment  against  the  defendants 
in  the  trial  for  sixty-eight  dollars  and  costs,  and  that  the 
defendants  thereupon  appealed  from  the  judgment,  was  a 
sufficient1  statement  of  the  facts  of  the  case,  without  in- 


238  SUPERIOR  COURT. 


cumbering  the  record  of  the  present  action  with  a  transcript 
of  the  record  below,  or  more  explicit  allegations,  to  require 
this  Court  to  judicially  notice  and  infer  that  both  the  cause 
of  action  and  the  defendant  himself  were  within  the  juris- 
diction of  the  justice  of  the  peace. 


William  Staplkford  v.  George  F.  White,  Sheriff. 

The  remedy  by  action  of  replevin,  pursuant  to  the  statute,  Rev.  Code,  379, 
380,  docs  not  extend  to  the  case  of  a  seizure  by  the  sheriff,  under  exe- 
cution, of  goods  in  the  possession  of  a  third  person,  under  a  contract  of 
renting  or  hiring  them  of  the  plaintiff  at  a  certain  price  per  year,  to  be 
returned  on  reasonable  notice  in  good  order,  without  notice  from  the 
plaintiff  terminating  the  contract  and  requiring  the  return  of  the  goods. 

Replevin  for  certain  household  goods  and  furniture, 
seized  and  taken  in  execution  by  the  defendant  as  sheriff, 
as  the  property  of  Nutter  L.  Davis,  on  sundry  writs  of 
testatum  Jit  ri  facias,  from  the  Superior  Court  for  Kent 
County,  at  the  suit  of  several  judgment  creditors,  against 
Andrew  J.  McColley  and  Xutter  L.  Davis.  The  goods 
had  been  previously  sold  as  the  property  of  Davis  by  Sheriff 
Green,  of  Kent  County,  on  judgment  and  execution  pro- 
cess, at  the  suit  of  other  parties,  against  McColley  and 
Davis,*and  were  bought  at  the  sale  by  William  Stapleford, 
the  plaintiff,  he  being  the  highest  and  best  bidder  therefor, 
who  paid  the  sheriff  and  took  a  bill  of  sale  from  him  for 
them.  It  also  appeared  in  evidence,  on  behalf  of  the  plain- 
tiff, that  after  the  sale  the  goods  remained  in  the  possession 
of  Davis,  under  an  agreement  in  writing  between  him  and 
the  plaintiff,  to  pay  the  latter  ten  dollars  a  year  for  the 
rent  or  use  of  them,  to  be  returned  after  reasonable  notice, 
in  as  good  order  as  circumstances  would  admit  of. 

K.  I),  ('nil,  ri,  for  the  defendant,  moved  to  nonsuit  the 
plaintiff.     This  is  an  action  of  replevin  by  Stapleford,  the 


STAPLEFORD  v.  WHITE.  239 

plaintiff,  against  the  sheriff,  for  goods  shown  to  be  at  the 
time  of  the  taking  in  the  rightful  and  lawful  possession  of 
another,  under  a  contract  of  hiring  or  renting  for  an  inde- 
finite term,  and  there  was  no  proof  of  notice  to  Davis  to 
return  them  to  the  plaintiff,  which  would  have  terminated 
it.  Under  such  circumstances  the  plaintiff  had  nothing 
more  than  what  may  be  termed  a  reversionary  interest  in 
the  goods,  without  a  right  to  the  immediate  possession  of 
them,  and  therefore  he  could  not  maintain  an  action  of 
replevin  for  them.  Davis  had  an  interest,  and  property  in 
them  under  the  contract  of  renting,  which  was  liable  to 
seizure  and  sale  on  an  execution  against  him  ;  and  the 
plaintiff's  remedy,  if  he  had  any,  was  by  an  action  on  the 
case,  and  not  by  replevin.  1  Ch.  PL  62;  10  Eng.  C.  L. 
E.  477;  7  T.  E.  9;  3  Campb.  186;  15  Pick.  63;  21  Eng. 
C.  L.  R.  390 ;  3  Denio,  79 ;  3  Pictc.  254 ;  3  Sandf.  Pep.  52 ; 
3  H ill,  576. 

C.  S.  Leiylon,  for  the  plaintiff:  The  cases  cited  are  all 
good  at  common  law,  and  would  be  good  here  but  for  the 
provisions  of  the  statute,  Rev.  Code,  379,  380;  the  object 
of  which  is  to  extend  the  remedy  of  replevin,  and  the  spe- 
cific recovery  which  it  affords  at  common  law,  not  only  to 
a  wrongful  taking,  but  to  a  wrongful  detention  also,  and 
to  give  redress  by  this  method,  more  particularly  against 
an  officer  taking  goods  on  execution  for  the  wrongful  de- 
tention of  them  against  the  demand  of  the  rightful  owner 
of  them,  in  order  that  he  may  have  them  restored  to  him 
in  specie.  Perry  v.  Foster,  3  Harr.  293.  The  Court  will 
observe  that,  under  the  provisions  of  the  statute,  Davis 
could  not  bring  the  action,  because  he  was  one  of  the  de- 
fendants in  the  execution  under  which  the  goods  were 
seized  by  the  defendant  as  sheriff;  and  therefore,  to  give 
the  statute  the  construction  contended  for  on  the  other 
side,  would  be  to  deny  the  remedy  by  replevin  in  a  case 
like  this  altogether. 

By  the  Court:  The  motion  must  prevail,  and  the  plaintiff 


240  SUPERIOR  COURT. 

must  be  nonsuited.  The  provision  of  the  statute,  ex- 
tending the  common  law  remedy  by  the  action  of  replevin 
to  cases  of  wrongful  detention,  as  well  as  wrongful  taking, 
does  not  reach  or  affect  this  case,  as  the  plaintiff  neither 
had  nor  was  entitled  to  the  possession  of  the  goods  at  the 
time  of  their  seizure  by  the  sheriff  under  the  execution, 
nor  at  the  time  when  they  were  replevied  by  him ;  for, 
without  notice  terminating  the  contract  of  renting  or  hiring 
between  him  and  Davis,  and  requiring  the  return  of  the 
goods  to  him,  pursuant  to  the  agreement,  there  was  no 
wrongful  detention  by  the  defendant  of  the  goods.  There 
was,  consequently,  no  wrongful  taking  and  no  wrongful 
detention  of  the  goods  from  the  plaintiff  at  the  time  of  the 
commencement  of  the  action,  and  he  must  be  nonsuited. 


Doe  d.  William  Bright  v.  Rebecca  Stevens. 

The  effect  of  a  recovery  in  an  action  of  ejectment  is  not  conclusive  as  to 
title ;  but  it  is  evidence  of  the  right  of  possession  in  the  party  recover- 
ing, at  the  time  of  the  recovery. 

A  judgment  by  default  in  a  former  action  of  ejectment  between  the  same 
parties,  legally  establishes  the  right  of  the  plaintiff  to  the  possession  of 
the  premises  in  a  second  action  of  ejectment  between  them  lor  the  same 
premises;  but  unless  it  is  followed  by  (in  entry  into  possession,  either 
by  a  writ  of  possession,  or  without  writ,  but  with  the  consent,  or  by 
the  surrender  or  abandonment  of  the  defendant,  such  judgment  can 
have  no  effect  on  the  defendant's  possession,  or  upon  the  question  of 
title,  founded,  upon  his  part,  on  an  actual  and  uninterrupted  adverse 
possession  of  twenty  years'  continuance. 

This  was  an  action  of  ejectment  for  an  unimproved  lot 
of  ground  on  Walnut  Street,  in  the  city  of  Wilmington. 
Bright,  the  plaintiff,  adduced  a  legal  title,  through  sundry 
conveyances  offered  in  evidence  on  his  part,  to  two-thirds 
and  to  three-fourths  of  the  remaining  third  of  the  lot  in 
question.  He  also  proved  that  he  had  brought  a  previous 
action  of  ejectment  against   the   defendant  for   the  same 


DOE  d.  BRIGHT  v.  STEVENS.  241 

premises  to  the  May  Term,  1849,  in  which  he  obtained 
judgment  by  default  against  her,  and  soon  afterwards 
entered  peaceably,  but  without  writ,  into  the  possession  of 
them ;  when  the  defendant  came  to  him  and  said,  that 
since  he  had  cast  her  in  the  suit,  she  now  found  that  he 
had  a  better  title  to  the  lot  than  she  had;  she  should  now 
give  it  up  to  him,  and  have  no  more  to  do  with  it.  On 
the  part  of  the  defendant  there  was  also  a  show  of  legal 
title  to  the  premises;  but  an  adverse  possession  of  more 
than  twenty  years  prior  to  the  commencement  of  the  pre- 
sent action,  was  the  main  defence  relied  on;  and  for  this 
purpose  the  defendant  proved  that  her  husband,  John 
Stevens,  under  whose  will  she  derived  her  claim  to  the 
lot,  was  in  possession  of  it,  and  had  a  garden  on  a  portion 
of  it,  and  was  in  the  habit  of  penning  pigs  and  cows  upon 
it  as  early  as  1832  or  1833,  up  to  the  time  of  his  death  in 
1837,  when  she  entered  into  the  possession  of  it,  and  con- 
tinued to  use  and  occupy  in  like  manner  until  the  recovery 
of  the  judgment  by  default,  in  the  previous  action  of  eject- 
ment, at  the  suit  of  the  plaintiff  against  her,  in  1849.  It 
was  after  the  recovery  of  this  judgment  by  default  that 
the  plaintiff  entered  upon  the  premises  without  objection 
from  the  defendant,  and  continued  in  the  undisputed  pos- 
session of  it  until  185,0,  when  the  latter  re-entered  and 
forcibly  evicted  him  from  it. 

D-  31.  Bates,  for  the  plaintiff:  This  action  was  in- 
stituted November  the  11th,  1853.  In  it  title  does  not 
mean  or  signify  ownership,  but  right  of  possession  at  the 
time  of  the  ouster  committed.  If,  therefore,  the  defendant 
had  the  right  of  possession  at  the  time  of  the  entry  of  the 
defendant  upon  him,  he  would  be  entitled  to  recover.  We 
have  shown  by  the  deeds  offered  in  evidence,  that  the 
plaintiff  has  the  legal  title  to  two-thirds  and  three-fourths 
of  another  third  of  the  premises.  In  May,  1849,  he  com- 
menced an  action  of  ejectment  against  Mrs.  Stevens  for 
the  lot,  and  it  appeared  by  the  record  that  a  copy  of  the 
declaration  was  served  on  her,  and  that  she  suffered  judg- 


242  SUPERIOR  COURT. 

ment  to  go  against  her  by  default;  that  the  plaintiff  there- 
upon entered  into  the  peaceable  possession  of  the  lot,  and 
that  the  defendant  afterwards  forcibly  evicted  him  from  it. 
I  shall  not  contend  that  this  judgment  was  conclusive  of 
the  rights  of  the  parties  in  this  instance;  but  I  do  maintain 
that  it  put  the  defendant  to  her  action  of  ejectment  against 
the  plaintiff,  to  recover  the  possession,  if  she  was  entitled 
to  the  premises  either  by  an  adverse  possession  of  twenty 
years  before  the  action  was  instituted,  or  by  a  formal  legal 
title  to  it.  Because  the  possession  of  the  plaintiff  under 
the  judgment  was  a  rightful  possession,  and  could  not  be 
disturbed  by  any  one  without  a  better  right  of  possession, 
and  establishing  it  by  an  action  of  ejectment  brought  for 
that  purpose.  A  person  in  possession,  under  such  a  judg- 
ment, may  recover  on  such  a  possession  merely,  as  against 
a  mere  wrong-doer  who  forcibly  evicts  him.  14  Eng.  C.  L. 
R.  481;  41  Eng.  C.  L.  R.  23;  Smith  v.  Lorillard,  10  Johns. 
356.  His  entry  under  the  judgment  was  conclusive  as  to 
his  right  of  possession,  and  made  his  possession  lawful  at 
the  time  he  was  forcibly  evicted  by  the  defendant  without 
a  better  right.  Jackson  v.  Rightmire,  16  Johns.  324.  An 
adverse  possession  is  a  possession  taken  under  a  claim  of 
right,  and  must  not  only  be  taken,  but  must  be  continued 
without  interruption  for  twenty  years,  in  hostility  to  the 
title  of  the  rightful  owner;  and,  therefore,  if  the  plaintiff, 
after  the  recovery  of  the  judgment  by  default,  re-entered 
on  the  premises  but  for  a  day,  it  interrupted  the  adverse 
possession  of  the  defendant,  and  it  was  no  defence. 

Gordon,  for  the  defendant :  If  the  defendant,  and  those 
under  whom  she  claims,  had  been  in  the  adverse  possession 
of  the  premises  for  twenty  years  before  the  entry  of  the 
plaintiff,  after  the  recovery  of  the  judgment  by  default  in 
the  former  action  of  ejectment  between  the  parties,  the 
plaintiff  was  not  entitled  to  recover;  because  a  judgment 
by  default  in  ejectment  was  no  evidence  of  title,  and  the 
plaintiff's  re-entry  upon  the  lot,  after  the  recovery  of  it, 
without  a  writ  of  possession,  was  itself  a  trespass,  unless 


DOE  d.  BRIGHT  v.  STEVENS.  243 

it  was  proved  that  the  defendant  had  abandoned  the  pos- 
session absolutely  after  the  rendition  of  the  judgment;  and, 
therefore,  such  a  re-entry  by  the  plaintiff  could  give  no 
right  of  possession. 

The  Court,  Wootten,  J.,  charged  the  jury:  The  object  of 
this  action  is  to  recover  the  possession  of  the  premises  in 
question,  and  to  do  this  the  plaintiff  must  prevail  on  the 
strength  of  his  own  title,  and  not  upon  any  weakness  or 
defect  in  the  claim  of  his  adversary.  lie  rests  his  right  to 
recover,  first,  upon  the  ground  of  his  legal  title  to  two- 
thirds  and  the  three-fourths  of  another  third  of  the  lot 
from  a  certain  Isaac  Jones,  traced  down  through  a  chain 
of  paper  title  to  himself;  and  secondly,  on  the  ground  of  a 
judgment  obtained  by  default  in  1849,  in  a  former  action 
of  ejectment  between  him  and  the  defendant  for  the  re- 
covery of  the  premises,  and  his  peaceable  re-entry  and  pos- 
session of  the  [tremises  from  that  time  until  1850,  when  he 
was  forcibly  evicted,  as  he  alleges,  from  them  by  the  de- 
fendant. The  defendant,  on  the  contrary,  resists  his  right 
to  recover,  first  because,  as  she  alleges,  she  and  her  hus- 
band, under  whose  will  she  claims  to  own  the  property, 
have  together  been  in  the  peaceable  and  continuous  pos- 
session of  it  for  more  than  twenty  years  prior  to  the  com- 
mencement of  the  present  action,  as  the  rightful  owners  of 
it,  and  secondly,  on  the  ground  that  the  recovery  of  the 
judgment  by  default  by  the  plaintiff,  in  the  former  action 
of  ejectment  between  them,  was  no  evidence  of  title  in  him 
to  the  premises,  and  that  his  entry  afterwards  upon  the 
premises,  without  writ,  was  itself  an  act  of  trespass,  and 
gave  him  no  right  of  entry  and  no  right  of  possession,  so 
as  to  interrupt  the  adverse  possession  of  the  defendant. 
We  may  therefore  regard  the  case  as  substantially  turning 
and  depending  on  the  question  whether  the  defendant  has 
succeeded  in  establishing  in  herself  and  her  husband,  under 
whom  she  claims,  a  continuous  and  uninterrupted  adverse 
possession  of  the  premises  for  a  period  of  twenty  years  or 
more  previous  to  the  commencement  of  the  present  action. 


244  SUPERIOR  COURT. 


If  she  has,  then  your  verdict  should  be  for  the  defendant; 
but  if  she  lias  not,  then  it  should  be  for  the  plaintiff.  If, 
therefore,  it  should  appear  to  you  from  the  evidence  that 
before  this  possession  of  twenty  years  was  complete,  the 
defendant  was  actually  out  of  possession  and  the  plaintiff 
was  let  into  jt,  either  upon  a  writ  of  possession  under  the 
former  recovery  of  judgment  by  default,  or  by  the  consent 
or  voluntary  surrender  of  the  defendant  of  the  possession, 
it  would  not  be  such  a  continuous  adverse  possession  as 
would  constitute  a  valid  defence  to  the  present  action ;  for 
the  effect  of  such  a  recovery  and  possession  under  it  would 
be  to  interrupt  her  possession,  and  her  subsequent  re-entry 
and  eviction  of  the  plaintiff  could  not  complete  it.  A  re- 
covery in  an  action  of  ejectment  is  not  conclusive  as  to 
title,  but  it  is  evidence  of  the  right  of  possession  of  the 
party  recovering  at  the  time  of  recovery;  and  if  the  plain- 
tiff in  this  case  was  let  into  possession  of  the  premises 
under  the  former  recovery,  either  by  a  writ  of  possession 
or  by  the  consent  of  the  defendant,  and  she  has  not  shown 
a  continuing  adverse  possession  of  twenty  years  prior  to 
that  time,  the  plaintiff  is  entitled  to  recover.  The  case 
turns,  therefore,  as  we  have  before  remarked,  very  much, 
if  not  entirely,  on  the  question  of  possession  by  the  defen- 
dant. If  the  plaintiff  has  established  a  legal  title  to  all,  or 
a  portion  of  the  lot,  and  the  defendant  has  not  shown  an 
uninterrupted  adverse  possession  of  twenty  years  in  her- 
self ami  those  under  whom  she  claims,  he  is  entitled  to  a 
verdict  lor  all,  or  such  part  of  it  as  he  has  established  a 
legal  title  to;  but  if  the  defendant  has  succeeded  in  proving 
to  your  satisfaction  such  a  possession  for  twenty  years,  or 
more,  previous  to  the  recovery  of  the  judgment  by  default, 
and  the  entry  of  the  plaintiff  afterwards,  the  verdict  should 
be  for  the  defendant,  notwithstanding  the  legal  title  to  the 
premises  may  have  been  shown  to  be  in  the  plaintiff. 

After  the  jury  had  retired,  and  had  been  all  night  de- 
liberating on  their  verdict,  the  following  inquiry  was  pro- 
pounded   by  them   in  writing  to  the  Court:    "Will   the 


FRANK  v.  FRANK'S  ADMINISTRATOR.         245 

Court  inform  the  jury  whether  the  judgment  obtained  by 
default,  by  Mr.  Bright,  the  plaintiff,  legally  interfered  with 
the  right  of  possession  of  Mrs.  Stevens,  the  defendant?" 
To  this  inquiry  the  Court  replied  that  the  judgment  by  de- 
fault in  the  former  action  of  ejectment  between  the  parties 
legally  established  the  right  of  the  plaintiff  to  the  posses- 
sion of  the  premises,  but  unless  it  was  followed  by  an  entry 
into  possession,  either  by  a  writ  of  possession  or  personally 
without  writ,  but  with  the  consent  or  by  the  surrender  or 
abandonment  of  the  defendant,  such  judgment  would  have 
no  effect  on  the  defendant's  possession,  or  upon  the  ques- 
tion of  title  founded  upon  her  part  on  an  actual  and  unin- 
terrupted adverse  possession  of  twenty  years'  continuance. 

Verdict  for  defendant. 


Henry  Frank  v.  George  C.  Frank's  Administrator. 

The  Court  will  not  compel  the  production  of  a  promissory  note  by  a  plain- 
tiff before  trial  for  the  inspection  of  the  defendant,  although  he  is  an 
administrator,  on  an  affidavit  submitted  by  him,  alleging  grounds  to 
suspect  its  genuineness,  and  that  the  plaintiff  had  refused  to  allow  the 
defendant  to  see  it. 

This  was  an  action  of  asswnpsit  on  three  promissory 
notes,  purporting  to  be  made  by  George  C.  Frank,  payable 
to  the  order  of  Henry  Frank,  amounting,  in  the  aggregate, 
to  six  thousand  dollars.  The  case  was  at  issue  and  on  the 
list  for  trial;  and,  at  an  early  day  in  the  term,  the  defendant 
filed  an  affidavit  that  lie  had  been  intimately  acquainted 
with  George  C.  Frank  for  thirty  years  before  his  death, 
and,  for  the  last  five  or  six  years  of  his  life,  had  transacted 
much  business  for  him,  and  was  therefore  conversant  with 
the  relations  existing  between  him  and  the  plaintiff.  That 
he  never  knew  or  had   heard  of  any  indebtedness  of  the 


246  SUPERIOR  COURT. 


deceased  to  the  plaintiff,  or  of  the  existence  of  the  promis- 
sory notes  declared  on,  until  after  the  institution  of  this 
case ;  and  he  was  informed  by  the  heirs  at  law  of  the  de- 
ceased that  they  had  never  heard  of  them  until  the  com- 
mencement of  this  suit.  That  the  deceased,  for  several 
years  preceding  his  death,  was  infirm  of  body  and  imbecile 
in  mind;  and  that  he  made  diligent  inquiry,  and,  from  the 
information  which  he  had  received,  he  was  of  opinion  that 
a  strong  suspicion  attached  to  the  making  and  signature  of 
the  said  promissory  notes;  but  he  had  not  as  yet  been  en- 
abled to  obtain  a  view  of  them,  as  the  plaintiff  had  refused, 
upon  his  request,  to  exhibit  them  to  him;  and  that,  to  eu- 
able  him  to  discharge  his  duty,  and  to  protect  and  defend 
the  estate  of  the  deceased  committed  to  his  administra- 
tion, it  was  highly  necessary  and  important  that  he  should 
be  allowed  a  reasonable  opportunity  for  the  examination 
and  inspection  of  the  said  notes  before  the  trial  of  the  case. 
And  on  this  affidavit  he  applied  for  and  obtained  a  rule 
upon  the  plaintiff  to  show  cause  wherefore  the  said  pro- 
missory notes  should  not  be  produced  in  Court  and  de- 
posited with  the  prothonotary,  for  the  inspection  of  the 
defendant,  a  reasonable  time  before  trial. 

Patterson,  for  the  plaintiff  in  the  rule:  There  is  every 
reason  to  suspect  the  genuineness  of  these  notes,  and  the 
refusal  even  to  show  them  to  an  administrator  of  whom 
payment  is  demanded  on  them,  is  itself  a  pregnant  circum- 
stance to  justify  that  suspicion;  and,  although  the  applica- 
tion was  a  novel  one  in  this  court,  it  was  in  conformity 
with  the  practice  of  courts  organized  and  constituted  as 
this  is  elsewhere;  and  he  had,  therefore,  no  doubt  of  the 
power  and  authority  of  the  Court  to  grant  the  application 
and  to  enforce  the  production  of  the  notes  under  the  cir- 
cumstances, and  for  the  purposes  stated  in  the  affidavit. 
Ri  vised  (  'ode,  317;  382  ;  3  Dan.  ( %  PL  $  /V.  2038,  2048,  2057, 
2070;  1  llopk.  Ch.  Rep.  143;  4  Taunt.  157;  8  Eng.  ('.  L. 
11  281  ;  1  Tidd  Pr.  489,  586. 


BARTHOLOMEW  v.  EDWARDS.  247 

McCaulley,  for  defendant  in  the  rule:  Most  of  the  cases 
cited  are  decisions  in  chancery,  and  are  not  authority  here, 
though  the  application  is  on  what  is  termed  the  equity  side 
of  this  Court.  In  all  the  cases  at  common  law  I  have  found 
but  one  solitary  case  in  which  a  similar  application  has 
been  made,  and  in  that  case  it  was  refused.  8  Eng.  C.  L. 
B.  376. 

By  the  Court :  "We  discharge  the  rule,  and  should  not 
have  laid  it,  except  to  afford  the  party  applying  for  it  an 
opportunity  to  show  authority  for  it,  if  he  could.  But 
whatever  may  be  the  suspicions  attaching  to  the  conduct 
of  the  plaintiff,  as  alleged  in  the  affidavit,  we  have  no 
power  to  command  the  production  of  these  notes  for  the 
purposes  stated,  or  for  any  other  purpose,  in  this  stage  of 
the  case;  and  we  have,  therefore,  no  hesitation  in  dismiss- 
ing it. 


George  Bartholomew  v.  Edward  Edwards. 

The  existence,  identity,  and  loss  of  a  deed,  are  questions  addressed  to  the 
Court,  and  are  first  to  be  decided  by  it,  and  afterwards  the  evidence  of 
its  contents  goes  to  the  jury;  and  if  the  evidence  is  irregularly  intro- 
duced on  these  points,  and  is  left  in  terms  of  too  general  import  in  the 
charge  by  the  Court  to  the  jury,  the  Court  will,  on  motion,  set  aside 
the  verdict  and  grant  a  new  trial. 

Action  of  trespass  quart  clausem  /regit,  by  George  Bartho- 
lomew v.  Edward  Edwards ;  trial  and  verdict  for  the  plaintiff, 
and  motion  to  set  it  aside  and  for  a  new  trial;  vide  p.  17. 
The  argument  was  now  upon  the  motion. 

J.  A.  Bayai'd,  for  the  defendant:  In  the  first  place,  the 
Court  misdirected  the  jury  in  their  charge  as  to  the  effect 
of  the  marking  and  bounding  the  lands  of  the  defendant, 
under  the  commission  of  the  Court  issued  for  that  purpose; 
because  the  adjudication    under  that  commission  had  the 


248  SUPERIOR  COURT. 


same  effect  as  an  adjudication  in  a  suit  at  law  on  the 
boundary  in  dispute,  or  an  agreement  in  writing  between 
the  parties  fixing  the  boundary.  In  the  next  place,  the 
Court  ought  to  have  charged  that  the  evidence  of  William 
B.  and  George  McCrone,  who  were  examined  as  witnesses 
on  behalf  of  the  plaintiff  to  that  point,  was  incompetent, 
on  the  facts  proved,  to  establish  the  contents  of  the  deed 
alleged  to  be  lost,  from  a  person  named  Grantham  to  a 
person  named  Moore ;  because  they  could  not  state  with 
certainty  the  names  in  full,  or  who  were  the  parties  to  the 
deed,  or  positively  that  it  was  signed  as  a  deed  by  any  one, 
or  what  were  the  premises  embraced  in  it;  for  all  they  could 
say  was  that  it  was  a  deed  for  land  covered  by  water.  It 
was  also  proved  that  the  lost  deed  was  at  one  time  in  the 
possession  of  Judge  Booth,  and  there  was  no  proof  that 
search  had  been  made  among  his  papers  for  it.  No  evi- 
dence of  its  contents,  therefore,  as  a  lost  deed  was  admissi- 
ble in  evidence  on  such  proof  as  this,  of  its  existence  and 
validity  as  a  deed  at  one  time  having  relation  to  the  rights 
of  the  parties  and  the  subject-matter  in  controversy  between 
them.  Before  evidence  can  be  admitted  as  to  the  contents 
of  a  lost  deed,  its  existence  as  a  good  and  valid  deed  before 
its  loss,  the  parties  to  it,  and  its  formal  execution  as  such, 
must  be  clearly  proved,  and  then  the  contents  must  be 
shown  with  proper  certainty,  or  it  would  open  a  wide  door 
to  fraud  and  knavery,  or  at  all  events  expose  the  titles  of 
parties,  which  the  law  requires  should  be  evidenced  and 
fortified  by  writing  under  seal  in  such  cases,  to  the  danger  of 
being  invalidated  by  the  loose  recollections  of  a  treacher- 
ous, infirm,  or  inaccurate  memory.  The  Court  also  erred 
on  this  point,  in  leaving  it  to  the  jury  to  say  whether  the 
existence  of  the  alleged  deed,  as  a  deed,  prior  to  its  loss, 
had  been  sufficiently  proved,  and  if  so,  then  to  decide  the 
question  of  its  contents  from  the  testimony  before  them  on 
that  point;  for  the  preliminary  question  was  a  matter  \'ov 
the  Court  and  not  for  the  jury  to  decide,  as  the  formal 
execution,  and  existence,  and  loss  of  the  deed,  are  preli- 
minary questions  solely  for  the  decision  of  the  Court;  and 


BARTHOLOMEW  v.  EDWARDS.  249 

when  satisfactorily  established  by  proof  addressed  to  their 
judgment  alone,  the  evidence  as  to  its  contents  then  goes 
to  the  jury  for  their  consideration  and  determination. 
And  in  the  next  and  last  place,  the  Court  omitted  to  in- 
struct and  charge  the  jury,  as  they  should  have  done  under 
the  facts  proved  in  the  case,  that  where  a  party  claims  a 
possessory  title  to  land,  he  can  claim  no  more  than  he  has 
in  his  exclusive  possession;  and  where  he  claims  by  posses- 
sion the  title  to  land  lying  outside  of  the  lines  of  a  written 
grant  to  him,  the  rule  is  the  same;  and  he  must  prove  that 
he  has  had  the  exclusive  possession  of  the  land  so  claimed 
for  a  period  of  twenty  consecutive  years,  in  order  to  esta- 
blish his  title  to  it. 

Rodney,  for  the  defendant:  As  to  the  effect  of  marking 
and  bounding  land,  the  statute  expressly  exempts  the 
rights  of  parties  in  possession  at  the  time  of  the  execution 
of  the  commission,  because  it  is  an  ex  parte  proceeding; 
and  is  not  even  prima  facie  evidence  of  possession  up  to 
the  boundary.  But  where  the  boundary  is  established  by 
agreement  between  the  parties  the  case  is  different,  and 
they  may  well  be  concluded  by  it.  In  relation  to  the  con- 
tents of  the  lost  deed  from  Grantham  to  Moore,  Mr. 
Rogers's  testimony  was  not  positive  that  he  had  given  it 
to  Judge  Booth;  but  be  merely  suggested  that  lie  might 
possibly  have  handed  it  over  with  other  papers  to  him, 
on  his  removal  from  New  Castle.  The  law  on  this  subject 
is  this:  the  evidence  of  the  execution  and  loss  of  the  deed 
is  addressed  to  the  Court;  the  evidence  of  its  contents, 
when  that  is  established,  is  for  the  jury,  In'  Johns.  108. 
The  proper  course,  too,  is  for  the  party  to  prove  by  his 
oath  that  he  had  a  deed  from  such  a  person  to  such  a  per- 
son, and  then  prove  its  loss  to  the  Court  in  the  usual 
method;  and  this  being  done,  afterwards  to  call  his  wit- 
nesses to  prove  its  contents  to  the  .jury.  As  to  the  testi- 
mony of  the  Messrs.  McCrone,  they  were  not  brought  here 
to  prove  the  loss  of  the  deed  to  the  Court,  but  the  contents 
of  it   to  the  jury,  and  that  having  been  done,  its  contents 

IT 


250  SUPERIOR  COURT. 


were  matters  exclusively  for  the  jury  to  determine;  and  the 
Court  will  not  set  aside  the  verdict,  even  if  they  differ  with 
the  jury  as  to  the  effect  and  sufficiency  of  the  evidence.  1 
Mark.  Ev.  341 ;  1  Atk.  Rep.  246.  In  regard  to  the  question 
as  to  the  possession  of  the  locus  in  <jao,  there  was  a  good 
deal  and  some  contrariety  of  proof  adduced  on  both  sides, 
and  it  was,  therefore,  a  matter  for  the  jury  to  decide,  and 
which  the  Court  very  properly  left  to  their  decision. 

./.  A.  Bayard:  The  marking  and  bounding  of  the  land 
after  seven  years  was  prima  facie  evidence  of  title  to  the 
land  up  to  the  boundary  located  under  the  commission; 
but  the  Court  thought  and  charged  otherwise,  and  in  this 
he  contended  the  Court  had  erred.  As  to  the  deed  said 
to  have  been  lost,  his  objection  was,  that  the  evidence  to 
the  Court  of  its  execution  and  existence,  as  a  once  valid 
and  subsisting  deed,  was  not  sufficient  to  let  in  the  evi- 
dence either  of  its  loss  or  of  its  contents. 

By  thf.  Court:  We  have  taken  time  to  consider  of  this 
matter,  and  upon  a  review  of  our  notes,  and  from  our 
recollection  of  the  testimony  in  the  case,  we  do  not  think 
that  there  was,  in  the  first  place,  sufficient  proof  adduced 
of  the  loss  of  the  deed  in  question  and  of  the  search  for 
it  (Judge  Booth's  papers  not  having  been  examined  for  it) 
to  warrant  the  admission  of  the  evidence  of  its  contents, 
the  law  as  to  which  has  been  correctly  stated  in  the  argu- 
ment on  both  sides.  The  previous  existence  and  subse- 
quent loss  of  the  deed  are  first  to  be  proved  to  the  satis- 
faction of  the  Court;  and  afterwards  the  evidence  of  its 
contents  is  addressed  to  the  jury:  and  to  do  this,  the  exist- 
ence and  identification  of  the  deed  as  a  deed,  and  the 
parties  to  it,  must  be  sufficiently  proved  to  the  Court, 
before  the  secondary  evidence  as  to  its  contents  can  be 
allowed  to  go  to  the  jury.  And  in  the  next  place,  the 
evidence  <>n  this  point,  owing  to  the  manner  in  which  the 
trial  was"  conducted,  and  as  much  by  the  inadvertence  of 
the  counsel,  as  by  the  acquiescence  of  the  Court,  was  irre- 


BARTHOLOMEW  v.  EDWARDS.  251 

gularly  introduced  on  the  trial,  and  left  in  terms  of  too 
general  import  by  the  Court  to  the  jury,  considering  the 
importance  of  the  deed  alleged  to  be  lost  in  the  case,  and 
the  loose  nature  of  the  proof  in  regard  to  it.  The  motion 
must,  therefore,  be  granted,  the  verdict  for  the  plaintiff 
must  be  set  aside,  and  a  new  trial  ordered;  but  we  take 
occasion  at  the  same  time,  with  this  exception,  to  reaffirm 
the  points  ruled,  and  the  law  as  stated  in  the  charge  to  the 
jury  on  the  trial  in  all  other  respects. 

The  new  trial  afterwards  proceeded  ;  the  evidence  of  the 
contents  of  the  deed  in  question  was  excluded  by  the 
Court,  for  the  want  of  sufficient  proof  as  to  its  existence 
and  identity  and  the  parties  to  the  deed;  and  the  defendant 
had  a  verdict. 


COURT  OF  ERRORS  AND  APPEALS. 

J  U  N  E    T  E  R  M, 
18  56. 


The  State,  for  the  use  of  Charles  II.  B.  Day  and  Mary 
his  wife,  lute  Mary  Warren,  v.  William  IIirons. 

Although  the  act  concerning  the  real  estates  of  intestates  provides  that 
on  the  appraisement  and  confirmation  by  the  Orphans'  Court  of  the 
real  estate  of  intestates,  the  value  of  the  lands,  according  to  the  said  ap- 
praisement, shall  be  substituted  in  the  place  of  said  lands,  there  is  no 
conversion  of  the  realty  into  personalty  until  acceptance  at  the  ap- 
praised value  and  assignment  by  the  Court,  or  sale  of  the  same  by  the 
order  and  confirmation  of  the  Court,  by  which  alone  the  legal  estate  of 
the  heirs  in  the  real  estate  is  divested  and  transferred,  and  converted 
into  its  equivalent  in  money,  to  be  secured  by  the  recognizance 

This  ease  came  up  on  a  scire  facias  on  a  recognizance 
taken  in  the  Orphans'  Court  for  Kent  County,  upon  a  case 
stated  in  the  Superior  Court,  and  on  a  question  of  law  re- 
served for  a  hearing  before  all  the  judges  in  hank. 

The  case  stated  was  as  follows:  Samuel  Warren,  late  of 
Murderkiln  Hundred,  Kent  County,  died  intestate  in  1824, 
seized  iti  fee  of  two  several  tracts  of  land  situate  in  said 
Hundred,  and  left  to  survive  him  a  widow  and  tour  chil- 
dren—  Elizabeth,  John,  Charles,  and  Mary  Warren — as  his 
only  heirs-at-law.  Of  these  the  two  first  named,  Elizabeth 
and  John,  were  the  issue  of  a  former  wile,  and  ( 'harles  and 
Mary  were  the  issue  of  his  last  wife.  After  the  death  of 
his  widow,  the  said  William  IIirons,  who  had  intermarried 


STATE,  i'se  of  DAY  and  WIFE,  v.  HIRONS.       253 


with  the  said  daughter  Elizabeth,  presented  his  petition  to 
the  Orphans'  Court  of  said  county  for  partition  of  said 
lands,  and  commissioners  were  appointed  pursuant  to  the 
statute  in  such  cases  made  and  provided,  to  divide  the 
same,  who,  at  the  ensuing  March  Term,  1831,  of  said  court, 
made  return  that  the  lands  would  not  divide  into  the  pri- 
mary shares  directed,  without  detriment,  &c,  but  would 
divide  into  two  [tarts,  into  which  they  had  divided  them, 
one  of  which  allotments  they  had  appraised  at  #1465, 
and  the  other  at  #1400,  which  return  was  thereupon  ap- 
proved and  confirmed  by  the  Court,  and  the  same  day  the 
first-mentioned  allotment  was  accepted  by  and  assigned  to 
the  said  William  Hirons,  and  he  entered  into  recognizance 
to  pay  the  other  parties  entitled  their  respective  shares  of 
the  appraised  value  thereof,  and  which  have  since  been 
paid  and  satisfied  by  him ;  the  said  John  Warren,  the 
brother  of  the  whole  blood  of  the  said  Elizabeth,  the  wife 
of  the  said  William  Hirons,  having  in  the  meantime  died 
intestate  and  without  issue,  leaving  his  said  sister  of  the 
whole  blood,  the  said  Elizabeth  Hirons,  and  his  brother 
and  sister  of  the  half  blood,  the  said  Charles  and  Mary 
Warren,  to  survive  him  as  his  heirs-at-law ;  having  before 
his  death,  however,  attained  the  age  of  twenty-one  years, 
and  become  entitled  to  accept  the  other  allotment  of  the 
land  at  the  appraised  value  thereof.  At  the  March  Term, 
1838,  of  the  said  Orphans'  Court,  the  said  William  Hirons 
presented  a  further  petition,  setting  forth  these  facts,  and 
that  since  his  acceptance  of  the  first  allotment  the  said 
John  Warren,  who  was  then  a  minor  and  the  eldest  son  of 
the  said  deceased,  had  attained  his  majority,  and  had  since 
died  intestate  and  without  issue,  and  without  having  in 
any  manner  aliened  his  interest  in  said  lands,  and  that  the 
right  of  acceptance  in  the  other  allotment  had  thereby  de- 
scended and  devolved  upon  him  in  right  of  his  wife,  the 
sister  of  the  whole  blood,  the  said  Charles  and  Mary  War- 
ren still  being  under  the  age  of  twenty-one  years:  and 
prayed  the  Court  to  assign  the  residue  of  the  lands  to  him, 
which  was   done   upon   his  entering  into   recognizance   to 


2.">4     COURT  OF  ERRORS  AND  APPEALS. 


pay  the  other  parties  entitled  their  respective  shares  of  the 
appraised  value  of  the  same.  Charles  II.  H.  Day  had  since 
married  and  was  now  the  husband  of  the  said  Mary  War- 
ren, and  it  was  admitted  that  the  said  William  I  [irons  had 
paid  to  him,  in  right  of  his  wife,  and  to  the  said  Charles 
Warren,  each,  the  one-fourth  part  of  the  said  appraised 
value  of  the  said  second  allotment,  secured  to  be  paid  by 
the  said  last-mentioned  recognizance. 

The  question  of  law  reserved  was  whether,  upon  the 
above-stated  facts,  the  said  Charles  II.  B.  Day,  in  right  of 
his  wife,  the  said  Mary,  was  entitled,  under  the  said  last- 
mentioned  recognizance  and  the  laws  of  this  State,  to  re- 
ceive and  recover  any  sum  beyond  the  one-fourth  part  of 
the  appraised  value,  secured  to  be  paid  by  said  recogni- 
zance, with  interest  therereon  from  the  date  of  ir,  and  it' 
so,  what  sum  beyond  the  one-fourth  part  thereof'.'' 

Fisher,  Attorney- General,  for  the  plaintiffs:  The  plaintiffs 
must  be  entitled  to  the  one-third  instead  of  the  one-fourth 
part  of  John  Warren's  share,  if  the  same  was  real  estate 
and  was  not  converted  into  personalty  by  the  proceedings 
for  the  division  of  the  land  in  the  Orphans'  Court.  Dig.  of 
1S-20,  p.  815,  sec.  1,  and  p.  319,  see.  2.  The  words  of  the 
act  are  :  "  Then  the  appraised  value  shall  be  substituted 
for  the  land  ;  and  if  the  valuation  is  to  be  substituted  in 
the  place  of  the  land,  it  is  to  stand  in  the  place  of  the  land, 
and  must  be  subject  to  all  the  rights,  qualities  and  inci- 
dents which  attach  to  the  land  itself:"  Purd.  Dig.  700;  Dig. 
r>fl829,  322;  which  shows  that  the  appraisement  and  return 
does  not  of  itself  convert  the  land  into  money.  Amer.  L<w 
Regr.,  vol  1,  No.  2,  p.  121. 

A'.  1\  Smithers,  for  the  defendant:  The  misapprehen- 
sion on  the  other  side  consists  in  regarding  this  share  at 
this  time,  when  this  question  arises,  as  still  a  part  of  the 
real  estate  of  Samuel  Warren,  deceased,  instead  of  con- 
templating it  as  the  share  belonging  to  John  Warren  ab- 
solutely  at    the    time    when    this   question    first    presented 


STATE,  use  of  DAY  and  WIFE.  v.  HI  RONS.       255 


itself.  If  \\  was  real  estate  at  that  time,  then  his  sister  of 
the  whole  blood  and  his  brother  and  sister  of  the  half 
blood,  would  each  take,  under  the  provisions  of  our  act, 
an  equal  third  part  of  it  ;  but  if  it  was  personal  property 
at  that  time,  then  his  sister  of  the  whole  blood  will  take 
the  whole  of  it.  We  rely  upon  the  well-established  rule 
of  equitable  constructions  in  relation  to  the  conversion  of 
realty  into  personalty,  and  ex  converse.  The  Pennsylvania 
statute  contains  no  such  provision  as  we  find  in  our  sta- 
tute, nor  any  such  words  as  have  been  read  on  the  other 
side  from  our  act,  and  consequently  this  question  could 
never  have  arisen  in  that  State. 

M.  W,  Bates,  on  the  same  side.  I  entertain  the  opinion 
that  at  the  time  of  the  death  of  John  Warren,  his  interest 
in  the  lands  of  his  father  was  not  real  in  its  nature,  but 
had  been  converted,  by  the  express  terms  and  operation  of 
our  act  of  Assembly,  into  an  interest  in  the  appraised 
value  of  the  land,  on  the  return  of  the  appraisement  and 
confirmation  by  the  Orphans'  Court;  because  such  is  the 
language  of  the  law,  and  the  Court  cannot  alter  it.  The 
question,  and  the  whole  question  is,  did  John  Warren',  at 
the  time  of  his  death,  hold  a  share  of  this  real  estate,  or  a 
share  or  interest  in  the  appraised  value  of  it  ?  And  that 
question  is  decided  and  settled  by  the  law  itself. 

Comec/ys,  for  the  plaintiffs :  The  word  substitute  used  in 
the  act  referred  to,  is  merely  for  the  purpose  of  enabling 
the  Orphans'  Court  to  determine  in  what  sum  the  recog- 
nizance shall  be  taken,  and  nothing  more.  The  term  cm- 
ployed  is  not  that  the  land  shall  be  converted  into  the 
appraised  value  in  money,  but  that  the  latter  shall  be  sub- 
stituted for  the  former,  which  is  a  word  of  very  different 
import.  So  long  as  the  land  remains  unaccepted  ami  mi- 
assigned  in  the  Orphans'  Court,  it  continues  real  estate, 
and  descends  as  such  in  all  cases,  on  the  death  of  a  party 
entitled,  to  his  hcirs-at-law,  not  to  his  executors  or  ad- 
ministrators   as  is  the  case  when  the  substitution  bus  been 


256  COURT  OF  ERRORS  AND  APPEALS. 

completed  by  acceptance  and  assignment,  and  his  legal  rep- 
resentatives claim  his  interest  under  or  by  virtue  of  the 
recognizance.  Though  there  may  be  a  substitution  be- 
fore, there  can  be  no  conversion,  no  complete  change  of 
the  realty  into  personalty,  until  there  is  an  acceptance  and 
recognizance  with  security,  or  a  sale  of  the  land  by  the 
order  of  the  Court.  Such  is  the  decision  cited  from  Penn- 
sylvania by  my  colleague.  The  rules  of  construction  in 
courts  of  equity,  referred  to  on  the  other  side,  have  no- 
thing to  do  with  the  present  case,  because  we  are  now  in 
a  court  of  law,  where  such  rules  do  not  apply. 

By  the  Court:  Although  the  statute  provides,  that  on 
the  appraisement  and  confirmation  by  the  Orphans'  Court, 
the  valuation  shall  be  substituted  in  place  of  the  land, 
there  is  no  conversion  of  the  realty  into  personalty  until 
acceptance  at  th'e  appraised  value,  and  the  assignment  by 
the  Court,  or  sale  of  the  land  by  order  and  confirmation 
of  the  Court,  by  which  alone  the  legal  estate  of  the  heirs 
in  the  real  estate  is  divested  and  transferred,  and  con- 
verted into  its  equivalent  in  money,  to  be  secured  by  the 
recognizance.  The  real  plaiut'ffs,  Charles  II.  13.  Day  and 
Mary  his  wife,  are  therefore  entitled  to  recover  from  the 
defendant,  William  Ilirons,  upon  the  recognizance  in  ques- 
tion, in  addition  to  the  amount  already  paid  them,  a  sum 
of  money  equal  to  the  one-third  of  the  one-fourth  of  said 
recognizance,  with  interest  from  the  date  thereof,  which 
will  constitute  the  one  equal  third  part  of  the  said  appraised 
value  with  interest;  that  being  the  share  of  it  to  which 
they  were  justly  entitled  under  the  act,  on  the  death  of 
John  Warren,  according  to  the  facts  stated. 


SUPERIOR  COURT. 

FALL   SESSIONS. 
185  6. 


James  S.  Chase  v.  Robert  W.  Jefferson. 

The  record  of  a  suit  between  the  same  parties  is  admissible  in  evidence  in 
a  subsequent  action  between  them,  although  it  may  not  be  final  and 
conclusive  ;  as,  where  a  new  trial  has  been  asked  for,  and  the  rule 
granted,  and  the  question  upon  it  is  still  pending. 

In  an  action  of  trespass  for  breaking  and  entering  the  close  of  the  plain- 
tin",  which  trespass  the  defendant  justifies  because  the  plaintiff  had 
taken  his  goods  without  his  consent,  and  locked  them  up  in  his  close, 
the  Court  will  not  entertain  the  question,  nor  inquire  in  which  of  the 
parties  the  rightful  property  in  the  goods  at  the  time  was  vested,  when 
the  claim  of  the  defendant  rests  on  an  alleged  contract  of  purchase  of 
the  goods  before  that  of  the  plaintiff,  and  it  would  be  necessary  to 
determine  whether  there  was  such  a  delivery  of  the  goods  as  would 
complete  the  sale  and  vest  the  legal  right  to  them  in  the  defendant. 
The  principle  of  law  in  regard  to  the  recapture  of  goods  wrongfully 
taken  from  the  possession  of  the  owner,  and  the  right  of  the  owner  so 
dispossessed  to  speedily  follow  them  up  and  retake  them,  does  not  ap- 
ply in  such  a  case. 

This  was  an  action  of  trespass  qtuvrc  clausem  fregit  for 
breaking  and  entering  the  stable  of  the  plaintiff,  and  en- 
deavoring to  take  a  horse  from  it,  which  the  plaintiff  had 
locked  up  in  it.  The  defendant  claimed  to  own  the  horse, 
and  resorted  to  force  by  removing  several  boards  from  the 
stable  to  regain  the  possession  of  him,  which  he  had  re- 
cently lost,  by  tbi'  plaintiff's  taking  him  a  short  time 
before,  and   locking  him  up  in  his  stable.      It  appeared   in 


258  SUPERIOR  COURT. 


evidence  that  the  plaintiff  had  formerly  owned  the  horse 
and  had  sold  him  to  the  defendant  on  trial,  to  be  paid  for 
by  a  certain  time,  which  the  latter  failed  to  do,  and  the 
plaiutitf  thereupon  retook  the  horse.  The  defendant  in 
support  of  his  title  offered  in  evidence  the  record  of  an 
action  of  replevin  at  his  suit  against  the  plaintiff,  tried  at 
the  preceding  term  of  the  Court,  for  the  recovery  of  the 
horse,  and  which  resulted  in  a  verdict  in  his  favor;  but 
which  was  objected  to  on  the  other  side,  upon  the  ground 
that  there  was  no  judgment  in  the  case,  the  counsel  for  the 
defendant  in  that  suit  having  moved  within  the  four  days 
and  obtained  a  rule  to  set  aside  the  verdict,  and  for  a  new 
trial,  which  was  afterwards  continued  by  the  Court  until 
the  present  term,  and  was  still  pending  and  undecided. 

By  the  Court:  This  is  the  record  of  a  suit  between  the 
same  parties,  and  this  of  course,  makes  it  admissible  in 
evidence,  and  we  therefore  overrule  the  objection,  which 
applies  to  the  effect  and  not  to  the  admissibility  of  the 
record  as  evidence. 

For  the  plaintiff,  it  was  insisted  before  the  jury,  that  ad- 
mitting that  the  property  in  the  horse  was  in  the  defen- 
dant, it  could  not  justify  his  breaking  and  entering  the 
close  of  the  plaintiff,  to  take  it  out  of  his  possession.  It 
was  not  admitted,  however,  that  the  property  in  the  horse 
was  in  the  defendant.  He  had  obtained  the  possession  of 
him,  in  the  first  instance,  by  false  and  fraudulent  represen- 
tations to  the  agent  of  the  plaintiff  in  his  absence,  and  was 
not  to  have  the  horse  at  all  until  he  paid  the  money  for 
him.  Where  goods  are  to  be  paid  for  on  delivery,  it  was 
a  condition  precedent  and  must  be  performed,  before  the 
purchaser  can  acquire  any  right  of  property  in  them,  and 
the  vendor  may  resume  the  possession  of  them.  Chit,  on 
(fontr.  sQ()  ;  ]:',  Johns.  434.  So  it"  a  person  obtains  posses- 
sion of  goods  on  a  fictitious  pretext  of  having  purchased 
them  on  a  credit,  without  intending  to  pay  \'nv  them,  this 
is  such   a   fraud   as  will  vitiate   the   sale   and   prevent    him 


CHASE  v.  JEFFERSON.  250 


from  acquiring  any  property  in  them.     Mor.  on  Repl.  137  ; 
15  Mass.  Bep.156;  4  Harr.  327. 

The  counsel  for  the  defendant  relied  on  the  evidence  ad- 
duced in  the  ease,  and  on  the  record  and  verdict  in  the 
action  of  replevin  tried  between  the  parties  at  the  last 
term,  to  establish  the  property  of  the  defendant  in  the 
horse.  The  proof  was  that  the  plaintiff  had  sold  and  de- 
livered the  horse  to  the  defendant  on  a  credit  of  thirty 
days,  and  if  it  was  not  paid  for  by  that  time,  it  gave  the 
former  no  right  to  retake  him  from  the  possession  of  the 
latter,  but  his  only  remedy  was  by  an  action  on  the  con- 
tract of  sale.  If  therefore  the  horse  belonged  to  the  defen- 
dant, and  the  plaintiff  took  him  and  fastened  him  up  in 
his  own  close,  or  stable,  the  defendant  had  a  right  to  break 
and  enter  the  close  to  retake  it.  But  he  would  not  have 
had  the  right  to  break  and  enter  the  close  of  any  other 
person  for  this  purpose,  nor  would  any  one  but  the  defen- 
dant himself  have  had  this  right.  1  Archb.  N.  P.  410;  3 
Black.  Com.  4.  In  this  case  the  propert}*  was  wrongfully 
taken  by  the  plaintiff  from  the  possession  of  the  defendant, 
who  immediately  followed  it  up  to  regain  the  possession  of 
it,  and  under  the  circumstances  he  had  a  legal  right  to 
break  and  enter  the  close  of  the  plaintiff  for  that  purpose. 

The  dart,  Harrington,  Ch.  J.,  charged  the  jury :  This  is 
an  action  of  trespass  for  breaking  and  entering  the  close 
of  the  plaintiff,  and  removing  several  boards  from  his  stable 
and  the  inclosure  around  it.  The  alleged  trespass  is  to 
real  estate,  and  the  damage  complained  of  is  that  just  stated, 
and  which  the  defendant  justifies  on  the  ground  that  the 
plaintiff  had  taken  a  horse  from  his  possession,  which  as 
he  contends  belonged  to  him,  but  which  the  plaintiff  also 
claimed  as  his  property,  and  had  locked  it  up  in  said  close; 
and  the  whole  trial  had  turned  upon  the  question,  in  which 
of  the  parties  was  the  rightful  property  in  the  horse  vested. 
Hut  we  cannot  try  two  cases  in  one;  much  less,  in  un  action 
of  this  nature,  can  we  go  outside  of  the  issues  joined,  to  in- 
quire and   determine   in  which  o\'  the   parties   the  rightful 


260  SUPERIOR  COURT. 

property  in  the  horse  was  vested,  under  the  contract  of  sale 
and  the  facts  proved  in  connection  with  it.  We  are  there- 
fore of  opinion  that  the  principle  of  law  in  regard  to  the  re- 
caption of  goods  wrongfully  taken  from  the  possession  of 
another,  and  followed  up  by  the  person  so  dispossessed, 
does  not  apply  in  this  case,  where  the  claim  of  the  defen- 
dant is  based  on  a  contract  to  purchase  the  horse,  and  in 
which  it  would  be  necessary  to  inquire  whether  there  was 
such  a  delivery  of  the  property  as  would  complete  the  sale 
and  vest  the  legal  right  and  title  to  it  in  him.  But  it  ap- 
pears from  the  record  offered  in  evidence  that  this  very 
question  is  already  pending  in  another  action  between  the 
parties  in  this  Court,  and  that  it  remains  to  be  finally  de- 
cided and  disposed  of  in  that  action.  We  accordingly 
tlii nk:  the  only  question  to  be  considered  by  the  jury  in 
this  case,  is  the  question  of  the  alleged  trespass  in  breaking 
and  entering  the  close  of  the  plaintiff  by  the  defendant,  in 
the  declaration  mentioned,  and  if  you  are  satisfied  from 
the  evidence  before  you,  that  the  defendant  did  break  and 
enter  it,  then  your  verdict  must  be  for  the  plaintiff,  for  the 
amount  of  the  damage  done  him  bv  such  breaking  and  en- 

tering  merely. 

Verdict  for  the  plaintiff. 

Robinson  and  C.  S.  Lui/ton,  for  plaintiff. 

W.  Snulsbury  and  E.  D.  Cullm,  for  defendant. 


Woolsey  Burton,  Indorsee  of  Nathaniel  Inobaham,  r. 
Thomas  Robinson. 

Nothing  short  of  a  direct  acknowledgment,  or  a  distinct  admission  of  the 
existence  <>f  the  debt  as  a  subsisting  demand,  is  sufficient  to  take  it  out 
of  the  operation  of  the  statute  of  limitations. 

A  ((iialitied  and  conditional  acknowledgment  of  a  debt  barred  by  the 
statute  will  not  revive  it.  unless  the  condition  i-  performed. 

This  was  tin  action  of  as.tump.sit  on  a  promissory  note 


BURTON.  Indorsee,  v.  KOBINSON.  261 

made  by  Thomas  Robinson,  the  defendant,  to  the  order  of 
Nathaniel  Ingraham,  on  the  8th  day  of  August,  1840,  for 
$500,  and  indorsed  by  the  latter  to  Woolsey  Burton,  the 
plaintiff.  The  aetion  was  commenced  on  the  5th  day  of 
September,  1854,  and  the  only  defence  was  the  plea  of  the 
act  of  limitations.  The  plaintiff  relied  on  a  subsequent 
acknowledgment  to  take  it  out  of  the  operation  of  the 
statute;  and  for  this  purpose  he  proved,  by  a  witness  who 
was  present  in  the  spring  of  1852,  after  the  death  of  In- 
graham,  the  indorsee,  at  a  settlement  between  his  adminis- 
trator and  the  defendant,  and  on  the  production  of  the 
book  of  accounts  of  the  deceased,  there  appeared  a  credit 
on  his  account  against  the  defendant  for  his  note  of  $500, 
and  the  administrator  seemed  to  entertain  some  doubt 
whether  such  a  note  had  ever  been  given  to  Ingraham  by 
Robinson,  and  wished  to  know  where  it  was,  as  he  could 
find  no  such  note  among  Ingraham's  papers,  when  Robin- 
son informed  him  that  it  was  in  the  hands  of  Woolsey  Bur- 
ton, and  said  that  something  had  been  paid  on  it;  he  did 
not  say  that  it  had  been  paid  in  full.  The  witness  did  not 
see  the  note,  however,  nor  know  the  date  of  it,  or  that  it 
was  the  same  as  the  promissory  note  now  produced  and 
shown  to  him.  The  counsel  for  the  plaintiff,  for  the  same 
purpose,  also  offered  in  evidence  an  agreement  in  writing, 
bearing  date  September  4,  1854,  entered  into  and  signed 
by  AVoolsey  Burton,  administrator  of  Miers  Burton  and 
Thomas  Robinson,  pending  a  suit  between  the  parties  in 
that  character,  and  which  had  been  referred  out  of  court, 
in  which  it  was  agreed  between  the  parties  that  "  a  certain 
promissory  note  of  the  latter  to  Nathaniel  Ingrahain,  dated 
August  8,  1840,  for  $500,  and  by  him  indorsed  to  Woolsey 
Burton  in  his  own  right,  or  any  payments  thereon,  should 
not  lie  considered  by  the  referees  in  the  case  then  pending 
between  the  parties  as  aforesaid.'' 

liobivsoi},  tor  tin*  defendant,  contended  that  no  such  ac- 
knowledgment of  the  note  as  ;i  present  subsisting  demand 
against   the  defendant,  had   been   proved   by   the  evidence 


262  SUPERIOR  COURT. 

offered  as  would  take  the  case  out  of  the  operation  of  the 
statute  of  limitations,  for  which  he  relied  on  the  authority 
of  the  two  cases  lately  tried  together  in  the  Court  of  Errors 
and  Appeals,  before  all  the  judges  in  bank,  of  Waples1  s  Ad- 
ministrator v.  Morris's  Administrator,  and  Burton  v.  Waples's 
Administratrix.* 


*  The  cases  of  William  E.  Burton  V.  Alary  A.  Waples,  Administratrix  of 
Henry  C.  Waples,  deceased,  and  of  Mary  A.  Waples,  Administratrix  of  Henry 
C.  Waples,  deceased,  v.  William  E.  Burton,  Administrator  c.  t.  a.  of  Ann  C. 
Morris,  deceased,  above  referred  to  by  Mr.  Robinson  in  his  argument,  were 
decided  in  the  Court  of  Errors  and  Appeals,  June  Term,  1854,  on  ques- 
tions of  law,  reserved  for  hearing  before  all  the  judges  in  bank,  but  were 
accidentally  omitted  in  the  publication  of  the  last  volume  of  Harrington's 
Reports.  The  learned  reporter,  however,  has  kindly  furnished  me  with 
his  manuscript  report  of  the  cases ;  and  as  it  was  cited  and  relied  on  by 
the  learned  counsel  for  the  defendant,  in  Burton,  indorsee,  $c.,  v.  Jiobinso?i, 
I  have  thought  it  not  improper  to  append  and  publish  it  as  a  note  to  that 
case. 

The  cases  referred  to  were  in  the  nature  of  cross  actions  at  the  April 
Term,  1854,  of  the  Superior  Court  for  Sussex,  and  when  called  for  trial, 
as  there  was  no  dispute  about  the  facts,  by  consent  of  counsel  and  the 
direction  of  the  Court,  a  special  verdict  was  taken  in  each  case,  and  the 
question  of  law  arising  thereon,  which  was,  whether  on  the  facts  found  by 
the  jury  the  action  of  the  plaintiff  was  barred  by  the  statute  of  limitations 
pleaded  by  the  defendant,  was  reserved  for  a  hearing  before  all  the  judges 
at  the  ensuing  term  of  the  Court  of  Errors  and  Appeals. 

In  the  ease  of  William  E.  Burtoji  v.  Mary  A.  Waples,  Admiiiistratrix  of 
Henry  C.  Wapbs,  deceased,  the  special  verdict  was  as  follows  :  "  The  plain- 
tiff had  furnished  the  defendant  with  a  statement  of  his  account  against  the 
estate  of  Henrv,C.  Waples,  deceased,  duly  probated,  commencing  Janu- 
ary 23,  1844,  and  closing  October  9,  184(5.  Mrs.  Waples,  as  the  adminis- 
tratrix of  Henry  C.  Waples,  deceased,  had  also  an  account  against  the 
plaintiff,  William  E.  Burton,  as  the  administrator  c.  t.  a.  of  Mrs.  Ann  C. 
Morris,  late  Mrs.  Ann  C.  Barnard,  deceased,  which  was  also  barred  by 
the  statute  of  limitations.  The  parties  to  the  action  met  in  the  presence 
of  (i.  II.  Wright  and  John  I).  Rodney  to  examine  the  accounts,  and  no 
objection  was  made  to  the  correctness  of  either  of  them.  Mrs.  Waples 
stated  that  the  plaintiff's  account  was  ri^ht,  but  afterwards  said  in  the 
same  conversation  that  it  was  large,  and  larger  than  she  had  expected, 
and  she  would  have  to  plead  the  act  of  limitation-.  This  she  said  laugh- 
ingly. Mr.  Burton  said,  if  so,  he  must  bring  suit  at  once.  Mrs.  Waples 
rejdied.  she  would  not  plead  the  act  if  Mr.  Burton  would  pay  the  claim 
airainst  Mrs.  Morris,  or  if  he  would  agree  not  to  plead  the  act  of  limita- 
tions airain-t  it.      Mr.  Burton  did  not  a^ree  to  either,  but  said  he  was  will- 


BURTON,  Indorsee,  v.  ROBINSON.  263 

C.  S.  Layton,  for  the  plaintiff',  insisted  that  there- was 
evidence  of  a  Sufficient  acknowledgment  to  avoid  the  plea 

ing  to  pay  his  half  of  it  if  his  brother-in-law,  Mr.  Barnard,  the  son  of 
Mrs.  Morris,  who  got  half  of  her  estate,  and  was  equally  bound  with  him 
for  it,  would  consent  to  pay  his  portion  of  the  account." 

In  the  other  case,  of  Mary  A.  Waples,  Administratrix  of  Henry  C.  Waples, 
deceased,  v.  William  E.  Burton,  Administrator  c.  t.  a.  of  Ann  C.  Morris, 
deceased,  the  following  was  the  special  verdict  returned  by  the  same  jury  : 
"  Juhn  D.  Rodney  was  the  agent  of  the  plaintiff  in  the  administration  of 
the  estate  of  the  said  Henry  C.  "Waples,  deceased,  and  with  his  principal, 
Mrs.  Waples,  the  administratrix,  met  at  her  house  William  E.  Burton, 
the  administrator  of  Mrs.  Morris,  in  January,  1849,  for  the  purpose  of 
settling  the  accounts  between  the  estates  of  H.  C.  Waples  and  Mrs.  Mor- 
ris, late  Mrs.  Barnard.  The  account  against  the  latter,  running  from 
1841  to  1845,  was  produced  and  examined  by  the  parties,  when  William 
E.  Burton  said  he  had  no  doubt  the  account  was  correct  and  had  not  been 
settled.  He  admitted  the  propriety  and  justness  of  the  account,  and  was 
willing  to  pay  his  part  of  it  (he  married  the  daughter  and  one  of  the  heirs- 
at-law  of  Mrs.  Morris),  if  his  brother-in-law,  William  D.  W.  Barnard, 
the  son  and  other  heir-at-law  of  Mrs.  Morris,  who  lived  in  Missouri, 
would  pay  his  part  of  it,  and  desired  Mrs.  Waples  to  write  to  him  on  the 
subject.  In  June  or  July,  1850,  William  E.  Burton  said  again  to  Mrs. 
Waples's  agent,  Mr.  Rodney,  that  he  was  willing  and  wished  the  account 
to  be  settled,  and  was  willing  to  pay  his  part  of  it,  if  Mr.  Barnard  would 
pay  his  part  of  it.  He  admitted  the  account  to  be  correct,  and  promised 
to  pay  his  part  of  it,  if  Barnard  would  consent  to  pay  his  portion  of  it, 
and  added,  that  he  would  be  glad  to  hear  from  him,  as  he  desired  the 
matter  to  be  settled,  and  then  had  sufficient  rents  in  his  hands  from  the 
real  estate  of  Mrs.  Morris  to  satisfy  and  pay  it;  that  the  administration 
of  her  estate  had  been  closed,  and  he  wished  to  hear  from  Barnard  on  the 
subject,  to  save  the  necessity  of  passing  another  account  upon  it." 

The  question  was  whether,  on  these  facts,  there  was  a  sufficient  ac- 
knowledgment  in  both  or  either  of  the  cases  to  remove  the  bar  of  the 
statute  of*  limitations  ;  and  this  question  was  directed  by  the  Court  to  be 
reserved  for  a  hearing  before  all  the  judges  at  the  next  term  of  the  Court 
of  Errors  and  Appeals.  And  now,  at  this  term  of  the  said  court,  the 
cases  came  up  for  hearing  as  directed. 

E.  D.  Oullen,  for  the  plaintiff  in  the  first,  and  for  the  defendant  in  the 
second  case,  contended  that  any  admission  by  a  defendant,  whether  as  an 
administrator  or  as  the  party  originally  hound,  amounting  to  an  acknow- 
ledgment of  the  existence  of  an  unsatisfied  debt,  will  take  the  case  out 
of  the  operation  of  the  statute  of  limitations.  Because  the  promise  to  pay 
it  is  implied  from  the  acknowledgment  of  the  existence  of  the  debt.  But 
such  tin  acknowledgment  must  be  absolute,  and  not  conditional  merely  ; 


264  SUPERIOR  COURT. 


and  take  the  case  out  of  the  operation  of  the  statute  of 
limitations.    1  Ch.  PI  639 ;  2  Saund.  PL  and  Ev.  648 ;  Neiv- 

for  a  conditional  promise  to  pay  is  no  promise,  unless  it  is  shown  that  the 
condition  was  performed.  Waples  v.  Layton  if-  Hippie,  3  Harr.  508;  Black's 
Admr.  v.  Reybold,  Ibid.  528;  Newlin  v.  Duncan,  1  Han-.  204  ;  Chambers  v. 
Fennimvre's  Admr.  4  Harr.  3(58;  Bennington  v.  Parkins'  Admr.  1  Harr. 
128;  Ang.  on  Lirn.  218;  Blanch,  on  Lim.  61,  117;  1  Barn.  <j-  Cressw.  248; 
1  Selwyn's  N.  P.  140 ;  ,4n#.  on  Z*m.  249  ;  13  /,>»#.  C.  L.  /i.  273 ;  2  Crompt. 
$  Mees.  458,  468;  1  PirA\  368;  8  Joh?is.  407;  6  Wend.  394;  11  3/a.ss.  450; 
22  Kng.  C.  L.  R.  451 ;  1  Demo,  247  ;  1  Selw.  N.  I'.  138,  147  ;  14  Mees.  $ 
Wels.  740  ;  15  Wend.  284,  302 ;  7  Wend.  267  ;  2  PicA.  368 ;  2  H'aaA.  C.  C. 
Rep.  514;  3  Wend.  190;  1  Peters,  351  ;  11  Wheat.  309;  15  Jo/uw.  519;  1 
Archb.  N.  P.  208,  228;  21  £%.  C.  Z.  R.  427  ;  U't7A.  on  Lim.  33,  63,  70;  4 
Mees.  £  HWs.  31. 

He  argued,  on  these  authorities  and  from  the  special  verdicts,  that  in 
the  first  case  the  acknowledgment  was  absolute,  and  in  the  second  a  con- 
ditional one,  and  that  judgment  should  be  rendered  for  the  plaintiff  in 
the  former,  and  that  the  verdict  ought  to  be  set  aside  in  the  latter  suit. 

Houston,  contra:  However  vague  and  indefinite  may  have  been  the 
principle  ruled  and  established  in  the  early  cases  on  this  question,  the 
later  decisions  in  this  country,  as  well  as  in  England,  have  endeavored  to 
limit  and  define  the  nature  and  effect  of  admissions  now  necessary  to  take 
a  case  out  of  the  operation  of  the  statute  of  limitations  ;  ;m<l  accordingly 
it  is  now  held,  on  the  authority  of  the  later  and  more  maturely-considered 
cases,  in  this  country  at  least,  commencing  with  the  ruling  of  the  Su- 
preme Court  of  the  United  States  in  the  case  of  Bell  v.  Morrison,  1  Peters, 
351,  that  the  acknowledgment  now  required  for  thi  purpose  must  be  a 
clear  and  unequivocal  recognition  of  a  present  subsisting  debt,  and  of  the 
party's  liability  and  willingness  to  pay  it,  and  must  be  unattended  by  any 
circumstance  or  expression  which  repels  the  idea  of  a  willingness,  or  is 
inconsistent  with  the  implication  of  a  promise  to  pay  it.  The  acknow- 
ledgment of  the  administratrix,  the  defendant  in  the  first  case,  as  found 
by  the  special  verdict,  is  clearly  not  of  this  character  ;  for  it  was  accom- 
panied, at  the  time  she  made  it,  with  an  express  intimation  of  her  pur- 
pose to  rely  upon  the  statute  of  limitations  in  bar  of  the  plaintiffs  de- 
mand, unless  he  would  consent  to  waive  the  same  defence  in  her  suit 
agajnst  him  as  the  administrator  of  Mrs.  .Morris.  Hit  admission  was 
that  the  account  was  correct,  but  she  added  that  it  was  larger  than  she 
supposed,  and  she  would  have  t<>  plead  the  statute  of  limitations  against 
it,  unless  he  (Mr.  Burtoiij  would  waive  the  plea  of  the  statute  as  against 
her  claim.  She  well  knew,  a-  matters  then  stood,  that  l«>th  accounts 
were  barred,  and  she  evidently  intended  to  qualify  her  admission  so  as  U 
expressly  negative  the  idea  of  her  willingness  or  legal  liability  to  pay  the 
plaintiff's  demand,  except   upon   the  condition   that   he   would   waive  the 


BURTON,  Indorsee,  v.  ROBINSON.  265 


lin  v.  Duncan,  1  Harr.  204 ;  Black's  Executors  v.  Reybold,  3 
Harr.  528. 

bar  of  the  statute,  and  be  equally  just  and  generous  towards  her  in  the 
claim  or  account  which  she  held  against  him  as  the  administrator  of 
Mrs.  Morris.  Much  is  said,  and  loosely  said,  in  the  books  and  in  the 
earlier  decisions  on  the  point,  as  to  the  ground  on  which  rests  this  princi- 
ple of  reviving  a  debt  barred  by  the  statute,  by  a  subsequent  acknow- 
ledgment of  it ;  but  the  true  ground  on  which  it  rests  is  this, — the  ad- 
mission is  construed  to  be  an  implied  waiver  of  the  statute;  but  there 
can  be  no  implied  waiver  against  an  express  refusal  to  waive  it.  The  de- 
cision of  the  Supreme  Court,  before  referred  to,  has  been  so  generally  ap- 
proved, that  the  tribunals  in  the  States  hrfve  been  gradually  conforming 
to  it,  until  it  is  now  ruled  and  recognized  as  the  established  principle  on 
this  point  in  atdeast  one-half  of  them.  He  cited  2  Wash.  C.  C.  Rep.  514; 
2  Pick.  368  ;  3  Wend.  187  ;  15  Johns.  520;  7  Wend.  267,  535  ;  15  Wend.  284, 
308;  9  Cow.  674;  21  Pick.  323;  22  Pick.  291;  4  Oreenl.  Rep.  41,  159;  2 
Shipl.  Rep.  300,  349,  360 :  3  Fair/.  Rep.  470;  8  Conn.  Rep.  185;  11  Ibid. 
160;  9  Ibid.  496;  7  Ibid.  172;  4  N.  Hamp.  Rep.  315;  12  Verm.  Rep.  263; 
7  Ibid.  54  ;  9  Leigh's  Rep.  45;  2  Dec.  $  Bat.  Rep.  149,  330;  2  Bail.  Rep. 
278;  2  Hill,  326;  1  Bibb's  Rep.  403;  4  Dana  Rep.  505;  5  J.  J.  Marsh. 
Rep.  255;  7  Yearg.  Rep.  534;  Breezes  Rep.  171,  218;  4  Miss.  Rep.  358; 
6  Ibid.  20 ;  4  Porter's  Rep.  226;  4  Eng.  C.  L.  R.  478;  22  Eng.  C.  L.  R.  385 ; 
Ang.  on  Lim.  245  ;  Chambers  v.  Fennimore' 's  Admr.,  4  Harr.  368 ;  Farmers' 
Bank  v.  Leonard,  4  Harr.  540. 

These  cases  establish  at  present  a  far  different  principle  from  that  ruled 
in  many  of  the  earlier  cases,  which  went  to  the  absurd  length  of  implying 
a  promise  to  pay  from  declarations  even  to  the  contrary,  and  that  not- 
withstanding an  express  promise  to  pay  is  not  necessary  to  take  the  case 
out  of  the  operation  of  the  statute;  but  an  unequivocal  and  unconditional 
acknowledgment  of  a  present  subsisting  liability  and  willingness  to  pay. 
from  which  the  law  will  imply  a  promise  to  pay,  on  the  moral  obligation 
which  continues  after  the  legal  obligation  is  discharged  by  the  statute,  is 
necessary.  And  therefore  the  declaration  in  such  cases,  when  the  plain- 
tiff relics  on  a  subsequent  admission  to  remove  the  bar  of  the  statute,  is 
always  on  the  original  and  not  upon  the  new  promise  to  pay;  because  the 
law  does  not  proceed  upon  the  principle  that  the  new  promise,  either  ex- 
press or  implied,  furnishes  in  such  a  case  a  new  cause  of  action,  but  it 
simply  proceeds  upon  the  idea  that  the  subsequent  acknowledgment  ope- 
rates as  a  waiver  of  the  bar  of*  the  statute,  and  that  being  removed  the 
plaintiff  recovers  on  the  original  cause,  of  action,  which  survives  as  a  suf- 
ficient obligation  inforo  consrientur.  to  support  the  new  promise;  and  hence 
the  necessity  of  such  an  acknowledgment  or  admission  as  imports  a  will- 
ingness, and  will  at  least  imply  a  new  promise  to  pay  the  debt. 

I  agree  that  a  conditional  promise  will  not  avail  to  remove  the  bar  of 
the  statute,   unless   it  is  complied  with;   and  both  of  the  cases  before  the 

18 


266  SUPERIOR  COURT. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  In  the 
opinion  of  the  Court,  nothing  short  of  a  direct  acknow- 

Oourt  involve  a  condition  in  connection  with  the  admissions  found.  But 
if  a  distinction  is  to  be  made  between  the  two  cases  in  this  respect,  I  con- 
fidently submit  that  the  acknowledgment  of  Mr.  Burton,  the  defendant 
in  the  latter  case,  is  much  the  most  direct,  unequivocal,  and  positive,  and 
is  decidedly  the  strongest  in  favor  of  the  plaintiff's  right  to  recover.  For 
he  not  only  expressly  admitted  the  existence  of  the  debt  as  a  subsisting 
demand  against  him  as  the  administrator  of  Mrs.  Morris,  which  he  was 
liable  to  pay,  but  repeatedly  declared  his  willingness  to  pay  his  part  of  it, 
if  Mr.  Barnard,  the  other  heir-at-law,  would  consent  to  pay  his  portion 
of  it.  But  this  condition  was  one  which  did  not  apply  to  the  case,  or  refer 
at  all  to  his  liability  for  the  whole  of  the  debt  as  the  administrator  of  Mrs. 
Morris.  As  her  administrator  he  was  solely  liable,  and  was  the  only  party 
bound  to  pay  the  whole  of  it  to  the  plaintiff.  As  between  them,  Mr. 
Barnard  had  nothing  to  do  with  the  matter  ;  and  his  acknowledgment 
that  the  account  was  still  due  and  ought  to  be  settled,  and  that  he  desired 
to  have  it  paid,  was  the  only  acknowledgment  that  could  revive  it.  The 
admission  or  repudiation  of  it,  by  Mr.  Barnard,  had  nothing  to  do  with 
it,  and  in  this  connection,  and  for  this  purpose,  could  have  no  effect,  one 
way  or  the  other,  upon  it.  An  administrator  is  not  bound  to  plead  the 
statute  of  limitations,  and  Mr.  Burton's  admission  would  not  only  bind 
the  estate  of  Mrs.  Morris  in  his  own,  or  in  the  hands  of  a  succeeding  ad- 
ministrator, but  would  bind  Mr.  Barnard,  the  other  heir  and  distributee, 
also.  In  the  attempt  to  settle  these  accounts  between  themselves  in  a 
spirit  of  friendship  and  accommodation,  the  plaintiff  in  the  latter  case 
was  not  dealing  with  him  as  a  coheir  with  Mr.  Barnard,  but  as  the 
administrator  and  sole  representative  of  Mrs.  Morris  in  the  matter,  and 
he  was  the  only  person  who  could  charge  the  estate  by  any  declarations 
or  admissions  that  could  be  made  in  regard  to  it.  I,  therefore,  contend 
that  the  acknowledgment  is  much  stronger  in  the  latter  than  in  the 
former  case,  if  any  distinction  in  their  legal  effect  is  to  be  made  between 
them;  on  which,  however,  I  do  not  insist,  as  my  opinion  and  advice  have 
always  been  that  both  accounts  are  barred  by  lapse  of  time,  and  that  the 
acknowledgment  in  neither  case  is  sufficient  to  take  it  out  of  the  operation 
of  the  statute. 

As  to  the  adjudged  cases  in  our  own  State,  it  is  difficult,  if  not  impossi- 
ble, perhaps,  to  extract  any  precise  uniformity  of  principle  or  ruling  from 
them  on  this  point,  or  to  reconcile  them  altogether  with  each  other,  on  a 
critical  examination  of  them.  Hut  the  later  and  better  considered  case 
of  Chambers  v.  Fcnnimore 's  Aibnr.,  4  J[<*rr.  372,  recognizes  the  principle 
for  which  1  have  contended,  and  is  in  accordance  with  the  ruling  in  the 
more  recent  cases  in  the  other  States,  the  long  list  of  which  I  have  already 
cited.  In  that  case  the  question  was,  whether  an  express  promise  to  pay, 
in  addition  to  the  acknowledgment  of  the  debt,  was   necessary  to   revive 


BURTON,  Indorsee,  v.  ROBINSON.  267 

ledgment,  or  a  distinct  admission  of  the  existence  of  the 
debt  as  a  subsisting  demand,  is  sufficient  to  take  the  case 

it  as  against  an  administrator,  to  which  Booth,  Ch.  J.,  in  delivering  the 
opinion  of  the  Court,  said  :  "An  unqualified  and  unconditional  acknow- 
ledgment of  a  present  subsisting  debt,  and  that  the  party  is  liable  and 
willing  to  pay  it,  has  always  been  held  in  this  State  to  take  a  case  out  of 
the  act  of  limitations;"  and  "  an  express  promise  to  pay  is  not  necessary, 
either  by  the  original  party,  or  by  his  personal  representative;"  and  it  is 
to  be  hoped  that  this  case  will  hereafter  be  followed  in  our  future  decisions 
on  this  question.  Tn  the  case  of  Newlin  v.  Duncan,  1  Harr.  208,  T.  Clay- 
ton, Ch.  J.,  admits  and  regrets  that  the  law  on  this  subject  is  left  in  a 
confused  and  unsettled  state,  and  he  correctly  argues  to  show  that  a  sub- 
sequent acknowledgment  operates  as  a  waiver  of  the  statute,  and  that  the 
statute  does  not  extinguish  the  debt.  In  some  cases  it  has  been  held  that 
the  limitation  of  the  act  proceeds  on  the  presumption  that  the  debt  has 
been  paid.  But  this  is  not  so ;  for  it  is  simply  an  arbitrary,  though  a  wise 
rule,  established  by  positive  law,  and  proceeds  on  grounds  of  public  policy 
alone — that  public  policy  which  is  expressed  in  the  legal  maxim,  interest 
reipublicce  sit  finis  titium,  and  nothing  more.  That  the  subsequent  admis- 
sion does  not  operate  to  revive  a  debt,  or  extinguish  the  obligation,  but 
merely  as  a  waiver  of  the  bar  of  the  statute,  is  further  proved  and  illus- 
trated by  the  fact,  that  if  the  defendant  does  not  specially  plead  the  statute 
in  bar  of  the  demand,  the  plaintiff  recovers  as  a  matter  of  course,  not- 
withstanding the  lapse  of  time,  which  could  not  be  the  case  if  the  law, 
which  is  explicit  and  positive  in  its  provisions,  presumed  payment  after 
the  expiration  of  the  time  limited  for  the  action,  and  the  original  obliga- 
tion was  thereby  discharged. 

Mr.  Cullen,  in  reply,  denied  that  anything  more  than  a  mere  acknow- 
ledgment of  a  present  subsisting  debt  was  necessary  to  take  a  case  out  of 
the  operation  of  the  act  of  limitations.  Neither  an  express  promise  to 
pay,  nor  an  admission  of  a  present  legal  liability,  or  of  the  willingness  of 
the  party  to  pay  the  debt,  is  necessary  for  this  purpose.  Any  admission 
that  the  debt  exists  is  an  admission  of  a  legal  liability  to  pay  it;  and  from 
this  liability  the  law  implies  a  promise  to  pay  it,  whether  the  party  is  wil- 
ling or  not.  The  force  and  effect  of  the  admission  does  not  depend  on  the 
will  of  the  party,  but  on  its  extent  and  effect  as  a  recognition  of  a  sub- 
sisting demand  at  the  time  when  it  is  made. 

But  this  has  nothing  to  do  with  a  qualified  or  conditional  acknowledg- 
ment ;  and  Mr.  Burton's,  in  the  second  case,  was  clearly  and  conclusively 
of  that  character.  He  uniformly  refused  to  pay  or  settle  the  account  of 
Mrs.  Waples,  as  the  administratrix  of  her  husband,  II.  C.  Waples,  with- 
out the  sanction  and  consent  of  Mr.  Barnard  to  pay  his  part  of  it  ;  and  in 
every  instance  found  or  stated  in  the  special  verdict  it  appears  that  he 
expressly  prescribed  that  as  the  sole  condition  on  which  he  would  admit 


268  SUPERIOR  COURT. 

out  of  the  operation  of  the  statute  of  limitations ;  but  if 
they  were  satisfied  that  the  written  agreement  which  had 
been  given  in  evidence  between  the  plaintiff,  as  the  admin- 
istrator of  Miers  Burton,  deceased,  and  the  defendant,  was 
signed  by  the  latter,  then  the  Court  considered  it  such  an 
acknowledgment  of  a  subsisting  demand  on  the  promissory 
note  in  question,  as  would  remove  the  bar  of  the  statute. 

Note. — Houston,  J.,  did  not  sit  in  this  case,  having  been  of  counsel  for 
the  defendant. 

the  validity  of  it,  now  it  was  barred  against  the  estate  of  Mrs.  Morris. 
But,  in  the  other  case,  the  acknowledgment  of  Mrs.  Waples  was  very  dif- 
ferent. She  admitted  directly,  and  without  qualification,  that  his  account 
was  right,  although  she  afterwards  said  in  a  jocular  manner,  and  with 
evident  hesitation  and  mortification,  that  it  was  large,  or  larger  than  she 
supposed,  and  that  she  must  plead  the  statute  of  limitations  to  it,  unless 
he  would  waive  that  defence  on  his  part  to  her  claim  against  the  estate  of 
Mrs.  Morris,  which  he  at  once  declined  to  assent  to.  And  here  let  me 
ask,  what  had  this  claim  to  do,  or  what  connection  had  it  with  his  account 
in  his  own  individual  right  against  the  estate  of  H.  C.  Waples,  deceased? 
The  one  was  no  defence  to  the  other,  and  they  could  not  be  set  off  against 
each  other;  and  this,  we  have  reason  to  suppose,  Mrs.  Waples  was  too 
well  informed  not  to  know  when  she  made  that  proposition.  It  was, 
therefore,  a  mere  pretence  or  pretext  on  her  part,  after  making  the  un- 
conditional admission  that  his  account  was  correct,  and  still  subsisting 
against  the  estate  of  her  husband,  to  qualify  it  by  an  after  thought,  and 
by  attaching  a  subsequent  condition  to  it,  which  had  no  legal  or  necessary 
connection  with  it ;  and  in  this  respect  her  acknowledgment  differs  most 
materially  from  the  conditional  and  qualified  acknowledgment  of  Mr. 
Burton  in  the  former  case. 

The  Court,  without  delivering  any  opinion,  afterwards,  at  the  same 
term,  directed  the  following  decision  to  be  entered  and  certified  to  the 
Court  below  in  each  of  the  cases:  The  questions  of  law  directed  in  this 
cause  by  the  Superior  Court  of  the  State  of  Delaware,  in  and  for  Sussex 
County,  to  be  heard  before  all  the  judges  in  the  Court  of  Errors  and  Ap- 
peals, to  wit,  whether  tho  statute  of  limitations  pleaded  by  the  said  de- 
fendant is  a  bar  to  the  action  of  the  said  plaintiff  in  this  cause,  having 
been  heard  before  all  the  judges  in  the  Court  of  Errors  and  Appeals,  and 
the  same  having  been  debated  by  counsel,  and  duly  considered  by  all  the 
judges  aforesaid,  it  is  hereby  considered  and  decided  by  the  said  judges  in 
the  said  Court  of  Errors  and  Appeals,  that  the  statute  of  limitations, 
pleaded  by  the  said  defendant,  is  a  bar  to  the  action  of  the  said  plaintiff 
in  this  cause;  and  it  is  hereby  ordered  that  this  decision  be  certified  to 
the  said  Court  below,  &c. 


CORDREY  v.  CORDREY.  269 


Aaron  Cordrey  and  others  v.  Betsey  Cordrey  and 
another. 

The  formal  execution  of  a  will  being  established,  the  presumption  of  law 
is  in  favor  of  the  capacity  of  the  testator  to  make  it. 

Testable  capacity  in  a  testator  amounts  to  nothing  more  than  a  know- 
ledge of  what  he  was  about  and  how  he  was  disposing  of  his  property 
and  the  purpose  so  to  do  it,  when  he  made  the  will.  The  simple  ques- 
tion therefore  is,  did  the  testator  know  and  understand  what  he  was 
about  when  he  made  the  will  ;  that  he  had  a  family,  and  the  relation 
in  which  he  stood  to  it,  and  that  he  had  property,  and  what  it  was,  and 
a  will,  or  desire  to  devise  it  as  disposed  of;  if  sov  then  it  is  his  will. 

What  degree  of  influence  will  vitiate  a  will. 

Issue  of  devisavit  vel  non,  ordered  by  the  Register  of  Sus- 
sex County,  to  try  the  question  whether  the  paper  writing 
purporting  to  be  the  last  will  and  testament  of  Josiah  Cor- 
drey, deceased,  is,  or  is  not,  the  last  will  and  testament  of 
Josiah  Cordrey,  deceased. 

The  will  in  question  bore  date  September  18th,  1850, 
and  the  deceased  left  to  survive  him  a  widow  and  five 
children,  viz.,  Betsey  Cordrey,  and  Aaron,  William,  John 
and  Nancy  Cordrey,  and  Grace  the  wife  of  Daniel  Hast- 
ings. To  William,  Nancy  and  Grace  he  bequeathed  a 
legacy  of  one  hundred  dollars  each,  and  to  Aaron  fifty 
dollars.  All  the  rest  and  residue  of  his  estate,  real  aud 
personal,  he  devised  to  his  wife,  Betsey  Cordrey,  for  life, 
and  after  her  death,  to  his  son  John  Cordrey  in  fee. 

Cyrus  C.  Windsor  was  produced  as  a  witness  by  the 
propounders  of  the  will,  and  testified  that  he  wrote  it  for 
Josiah  Cordrey,  by  his  request,  as  his  last  will  and  testa- 
ment, at  his  office  in  Laurel,  and  that  he  came  alone  to 
his  office  for  that  purpose,  but  could  not  say  who  came  to 
town  with  him  on  that  occasion.  lie  had  several  times  be- 
fore that  told  him  that  he  wanted  him  to  do  some  writing 
for  him.  The  will  was  read  to  him  after  it  was  written,  and 
he  approved  it  and  signed  aud  executed  it,  ami  the  witness, 
together  with  David   K.   Wolfe  and  John   Moore,  signed 


270  SUPERIOK  COUKT. 

it  in  his  presence  as  subscribing  witnesses.  He  was  at 
that  time  of  a  sound  and  disposing  mind  and  memory. 
On  cross-examination  the  witness  stated  that  he  after- 
wards drew  another  will  for  him  at  his  office  by  his  re- 
quest, but  he  never  executed  it.  He  told  John  Oordrey, 
one  day,  he  had  better  bring  the  old  man  down  to  execute 
it,  as  it  was  better  for  him  than  the  other  will,  but  the  old 
man  never  came.  He  was  sixty-live  or  seventy  years  of 
age,  and  was  intemperate  in  his  habits,  and  he  never  knew 
him  to  transact  any  business  himself  of  importance.  His 
son  John  lived  upon  and  carried  on  the  old  man's  farm 
for  him,  and  attended  to  most  of  his  business.  He  (the 
witness)  asked  John  to  pay  him  for  writing  the  will,  which 
he  did  about  two  years  afterwards,  in  the  old  man's  life- 
time. His  reason  for  asking  John  to  do  this  was  because 
the  old  man  seldom  came  to  town,  and  John  generally  at- 
tended to  his  business  for  him.  The  reason  the  old  man 
assigned  to  him  for  making  the  will  as  he  did,  was  because 
John  had  been  a  good  and  faithful  son  to  him. 

David  R.  Wolfe  testified,  that  he  signed  the  will  as  a 
subscribing  witness  at  the  request  and  in  the  presence  of 
the  testator,  and  heard  him  say  that  it  was  his  last  will  and 
testament.  Witness  could  not  say  that  he  ever  had  much 
mind,  but  he  thought  he  had  as  much  tlien  as  he  had  ever 
had  since  he  knew  him.  If  he  had  been  drinking  any  at 
that  time  he  did  not  discover  it.  lie  hud  known  him 
twenty-live  years,  but  had  never  known  him  to  buy  or 
sell  anything,  or  to  transact  any  business.  John  Moore 
testified,  that  he  also  signed  the  will  as  a  subscribing  wit^ 
ness  in  the  presence  of  the  testator.  He  had  as  much 
mind  then  as  he  ever  had,  he  thought.  He  never  knew  him 
to  transact  any  business.  When  he  first  knew  him,  nearly 
thirty  years  ago,  his  son  Elijah  attended  to  his  farm,  and 
his  wife  or  some  one  else  was  generally  with  him  when 
any  business  was  to  be  done  from  home.  He  was  always 
a  weak-minded  man,  but  he  could  not  say  whether  he  had 
sufficient  strength  of  mind  to  make  a  will,  because  he  did 


CORDREY  v.  CORDREY.  271 

not  know  how  much  strength  of  mind  the  law  required  to 
make  a  will.  He  once  went  to  his  house  to  trade  for  a 
horse,  and  he  traded  with  his  wife  and  his  son  John.  He 
had  nothing  to  do  with  it  or  to  say  about  it,  and  paid  no 
attention  to  it. 

The  will  was  then  offered  in  evidence  and  read  to  the 
jury,  and  the  parties  setting  it  up  here  rested. 

W.  Saulsbury,  for  the  caveators :  "We  shall  prove  that 
the  old  man  Josiah  Cordrey  never  had  sufficient  mind  to 
make  a  will,  and  never  had  sufficient  mental  capacity  to 
transact  any  business,  and  was  never  permitted  by  his 
family  to  attempt  such  a  thing  for  that  reason.  We  shall 
also  prove  that  he  was  entirely  in  the  hands  and  under 
the  control  of  his  son  John  for  many  years  before  his 
death,  and  was  worth  eight  or  ten  thousand  dollars,  all  of 
which,  with  the  exception  of  three  hundred  and  fifty  dol- 
lars bequeathed  to  his  other  four  children,  is  devised  to 
his  widow  for  life,  and  after  her  decease  to  him  in  fee 
simple. 

The  counsel  then  proceeded  and  called  several  witnesses, 
who  testified  that  the  testator  was  always  possessed  of  a 
very  weak  mind,  and  never  transacted  any  business  him- 
self for  many  years  before  his  death,  either  on  his  farm 
or  away  from  home.  They  also  proved  that  insanity  had 
existed  in  his  family,  and  that  his  mother  was  insane  for 
several  years  before  her  decease ;  that  the  testator  was 
intemperate  in  his  habits,  and  had  still  further  enfeebled 
and  impaired  a  mind  naturally  weak  by  frequent  and  ex- 
cessive indulgence  in  the  use  of  intoxicating  liquors,  and 
that  his  children  had  all  been  dutiful,  affectionate,  and  kind 
to  him  ;  but  they  had  all  married  and  left  him,  except  Lis 
son  John,  who  had  continued  with  him,  by  whose  industry, 
care,  and  diligence,  and  that  of  his  wife,  he  had  accumu- 
lated a  considerable  portion  of  his  property. 

For  the  caveators  it  was  argued  that  the  evidence  clearly 
indicated  that  the  testator  was  a  man  of  extreme  weakness 
and  imbecility  of  mind,  and  that  to  make  a  valid  will,  the 


272  SUPERIOR  COURT. 

testator  must  be  shown  to  possess  a  sound  and  disposing 
mind  and  memory,  and  to  be  able  to  clearly  comprehend 
and  fully  understand  what  he  is  doing  when  he  executes 
it ;  it  is  not  sufficient  that  he  can  answer  familiar  ques- 
tions intelligently  and  properly,  or  is  able  to  converse 
rationally  on  ordinary  matters.  1  Jarm.  on  Wills,  50;  Duf- 
Jield  v.  Morris,  2  Harr.  375. 

Upon  the  other  side  it  was  contended,  that  the  will  had 
not  been  successfully  impeached  either  upon  the  ground  of 
imbecility  of  mind  or  undue  influence.  As  to  the  degree 
of  capacity  necessary  to  make  a  valid  will,  1  Wms.  on 
Exrs.  16,  36  ;  2  Harr.  379  ;  1  Jarm.  on  Wills,  29,  53  ;  Shelf, 
on  Lunacy,  39,  275 ;  4  Mass.  593  ;  and  1  Wms.  on  Exrs.  21, 
were  cited.  The  property  of  a  person  might  be  committed 
by  a  court  of  chancery  to  a  trustee,  on  the  ground  of  the 
incapacity  of  the  individual  to  manage  and  take  care  of  his 
affairs,  and  yet  a  will  of  such  a  person  made  in  that  con- 
dition of  mind  may  be  sustained  as  a  valid  will.  26  Wend. 
255;  1  Jarm.  on  Wills,  53;  21  Vern.  63.  And  if  the  jury 
should  doubt  as  to  the  ability  of  the  testator  to  make  a 
will,  the  presumption  of  law  was  in  favor  of  sanity  and 
capacity,  and  therefore,  they  should  find  in  favor  of  the 
validity  of  the  will.  6  Greenl.  Cruise,  14  ;  1  Jarm.  on  Wills, 
31 ;  7  Pick.  94. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  The  ques- 
tion presented  in  this  case  has  been  frequently  before  this 
Court,  and  we  have  therefore  but  little  more  to  say  upon 
it  than  we  have  often  had  occasion  heretofore  to  say  in 
regard  to  it.  The  formal  execution  of  the  will  being  es- 
tablished in  accordance  with  the  provisions  of  the  statute 
on  the  subject,  the  presumption  of  law  is  in  favor  of  the 
capacity  of  the  testator  to  make  the  will.  But  to  speak 
more  specifically  as  to  the  degree  of  capacity  required  for 
this  purpose,  when  it  has  been  assailed  by  rebutting  testi- 
mony, the  Court  remarked  in  the  case  of  Chandler  and 
others  v.  Ferris,  1  Harr.  464,  "that  if  the  testator  was  ca- 


CORDREY  v.  CORDREY.  273 

pable  of  exercising  thought,  judgment,  and  reflection;  if 
he  knew  what  he  was  about,  and  had  memory  and  judg- 
ment, his  will  could  not  be  invalidated  on  the  ground  of 
insanity."  In  the  case  of  Dufficld  v.  Morris's  Exr.,  2  Harr. 
379,  the  Court  said,  "  A  perfect  capacity  is  usually  tested  by 
this,  that  the  individual  talks  and  discourses  rationally  and 
sensibly,  and  is  fully  capable  of  any  rational  act  requiring 
thought,  judgment,  and  reflection.  This  is  the  standard  of 
a  perfect  capacity.  But  the  question  is  not  how  well  a 
man  can  talk  or  reason,  or  how  much  judgment  he  can 
display,  or  with  how  much  propriety  and  sense  he  can  act  : 
it  is  only,  has  he  mind  and  reason,  can  he  talk  rationally 
and  sensibly,  or  has  he  thought,  judgment,  and  reflection  ? 
Weakness  of  mind  may  exist  in  many  different  degrees 
without  making  a  man  intestable.  Courts  will  not  measure 
the  extent  of  people's  understandings  or  capaeities.  If  a 
man  be  legally  compos  mends,  be  he  wise  or  unwise,  he  is 
the  disposer  of  his  own  property,  and  his  will  stands  as  the 
reason  for  his  actions."  And  in  a  still  later  case,  Sutton  v. 
Sutton  et  al.,  5  Harr.  461,  on  this  point  the  Court  observed, 
"  The  objections  in  this  case  are,  that  the  testator  from  age 
and  weakness  was  at  the  time  a  man  of  doubtful  and  fluc- 
tuating capacity,  operated  upon  by  improper  influences  to 
make  changes  in  his  will,  contrary  to  his  real  wishes  and  at 
variance  with  his  known  affections.  Testable  capacity  in 
such  a  person  as  John  Sutton,  the  testator,  will  amount 
to  nothing  more  than  a  knowledge  of  what  be  was  about, 
and  how  he  was  disposing  of  his  property,  and  the  purpose 
so  to  do  it.  And  as  to  undue  influence  over  a  man  of  tes- 
table capacity,  it  must  be  such  as  to  take  away  his  free 
will  ;  such  as  he  is  too  weak  to  resist.  Mere  solicitation 
will  not  be  sufficient  to  vitiate  a  will  made  by  a  person 
having  a  knowledge  of  what  lie  is  doing  and  intending  to 
do  it,  though  his  act  maybe  brought  about  by  solicitation, 
or  that  kind  of  influence  which  a  disposition  to  gratify 
another  may  produce."  The  simple  question  in  this  case 
therefore  is,  did  the  testator  know  and  understand  what  he; 
was  about  when  he  made  and  executed  this  instrument  pur- 


274  SUPERIOR  COURT. 

porting  to  be  his  will ;  that  he  had  a  family,  and  the  rela- 
tions in  which  he  stood  to  it,  and  that  he  had  property,  and 
what  it  was,  and  had  a  will,  or  desire  to  bequeath  and 
devise  it  as  it  is  disposed  of  in  this  instrument?  If  so,  then 
so  far  as  this  question  is  concerned,  it  ought  to  be  found 
to  be  his  will ;  but  if  otherwise,  it  should  not. 

Verdict  in  favor  of  the  will. 

Me Fee  and  W.  Saulsbury,  for  the  caveators. 

Moore  and  C.  S.  Lay  ton,  for  the  devisees. 


Nathaniel  Connoway  v.  Sally  E.  Spicer,  Administratrix 
of  Theophilus  Spicer,  deceased. 

A  judgment  entered  upon  a  note  for  debt  and  interest  included  up  to  the 
time  of  its  entry,  by  virtue  of  a  warrant  to  a  justice  of  the  peace,  au- 
thorizing judgment  "  to  be  entered"  for  the  above-mentioned  sum 
together  with  interesl  and  costs  of  suit,  is  good,  and  will  not  be  reversed 
on  certiorari. 

Certiorari  to  James  P.  W.  Kollock,  Esq.,  J.  P.  The 
record  set  forth  the  copy  of  a  note  from  Connoway  to  the 
deceased,  for  the  sum  of  eighty-four  dollars,  with  legal  in- 
terest from  the  date  thereof,  with  a  warrant  empowering 
any  justice  of  the  peace  in  the  State  to  enter  judgment 
for  the  above-mentioned  sum,  together  with  lawful  interest  and 
costs  of  suit,  with  stay  of  execution,  six  months  from  the 
date  thereof,  &c.  The  judgment  entered  thereon  was  for 
ninety-eight  dollars  and  four  cents,  and  included  the  in- 
terest on  the  note  up  to  the  date  of  the  judgment.  To 
this  it  was  excepted  that  the  justice  had  exceeded  the  au- 
thority conferred  on  him  by  the  warrant,  and  had  entered 
judgment  for  a  greater  sum  than  he  was  authorized  to  do, 
and  that  pursuant  to  the  warrant,  judgment  should  have 
been  entered  for  the  principal  of  the  note,  to  bear  interest 


HUDSON'S  ADMRS.   v.  MESSICK.  275 

from  the  date  of  it,  and  not  for  principal  and  interest  added 
together. 

But  the.  Court  held  that  there  was  nothing  in  the  terms 
of  the  note  or  warrant  to  require  this  construction,  and  as 
the  practice  had  been  otherwise,  and  the  judgment  changed 
the  nature  of  the  debt  and  extinguished  its  original  char- 
acter, it  was  properly  entered,  and  therefore  affirmed  it. 


Hudson's  Administrators  v.  Neiiemiah  Messick. 

When  it  is  stated  in  the  record  that  the  action  was  on  a  "  proved  ac- 
count," and  after  examining  the  account  of  the  plaintiff,  the  justice 
gave  judgment,  &c,  the  Court  will  presume  that  the  account  was  duly 
probated.  The  same  entry  is  sufficient  to  sustain  a  judgment  entered 
by  default.  No  verification  of  the  service  of  the  summons  by  the  con- 
stable is  necessary,  after  the  defendant  has  once  appeared  to  the  suit. 

Certiorari  to  Nathaniel  Connoway,  Esq.,  J.  P.  The 
record  stated  that  it  was  an  action  on  a  proved  account, 
and  that  summons  was  issued  returnable  the  22d  of 
March,  1855,  on  which  day  the  parties  appeared,  and  at 
the  request  of  the  plaintiff  the  case  was  adjourned  to  the 
5th  proximo,  on  which  day  the  defendants  failed  to  appear, 
and  that  after  examining  the  account  of  the  plaintiff  he 
gave  judgment  in  his  favor  against  the  defendants,  for 
&c.  The  exceptions  to  the  record  were,  1.  That  judgment 
had  been  rendered  against  the  exceptants  as  administra- 
tors by  default,  without  the  production  before  the  justice 
of  any  account  regularly  probated,  or  any  proof  necessary 
to  sustain  the  action.  '1.  That  the  justice  had  rendered 
judgment  against  them  by  default,  without  having  heard 
the  proofs  and  allegations  of  the  defendant.'  8.  And  that 
the  same  had  been  rendered  by  default,  without  the  return 
of  service  having  been  first  veritied  by  the  affidavit  o{  the 
constable  in  writing. 


270  SUPERIOR  COURT. 

But  the  Court  held  that  as  it  was  stated  in  the  record 
that  the  action  was  on  a  proved  account,  it  must  be  in- 
tended and  presumed,  in  the  absence  of  anything  appear- 
ing to  the  contrary,  that  the  account  was  properly  proved 
or  probated ;  that  it  also  appeared  from  the  record  that  the 
justice  had  examined  the  account  of  the  plaintiff  before 
giving  judgment,  and  that  there  may  have  been  no  book 
of  accounts  kept  by  the  plaintiff,  which  is  often  the  case, 
and  which  would  dispense  with  the  necessity  of  its  pro- 
duction, and  which  examination  by  the  justice  the  Court 
thought  sufficient  to  meet  the  second  exception.  That  no 
verification  of  the  return  of  service  of  the  summons  by  the 
constable  was  necessary  in  this  case,  as  the  exceptants  had 
previously  appeared  to  the  suit,  whicli  had  always  been 
held  sufficient  to  dispense  with  the  necessity  of  such  veri- 
fication ;  and  that  the  judgment  must  therefore  be  affirmed. 


Doe  d.  Thomas  W.  Ingram  and  Caroline  his  wife,  late 
Caroline  Hemphill,  and  Virginia  Hemphill,  v.  Richard 
Roe,  casual  ejector,  and  John  A.  Girard  and  Ellen  his 
wife,  late  Ellen  Hemphill,  tenants  in  possession. 

When  a  devise  cr  bequest  is  to  children,  or  to  brothers  and  sisters  gene- 
rally, as  a  class,  without  mentioning  them  individually  by  name,  and 
the  time  appointed  in  the  will  for  the  possession  or  distribution  of  the 
property  is  deferred  until  after  the  death  of  the  testator,  or  is  depen- 
dent upon  a  future  contingency  which  does  not  occur  until  after  his 
decease,  it  will  embrace  all  the  children,  or  all  the  brothers  and  sisters, 
or,  in  other  words,  all  the  objects  who  compose  flic  class  in  being  when 
the  contingency  happens,  or  the  appointed  period  for  the  enjoyment  or 
distribution  of  the  property  arrives,  whether  born  before  or  after  the 
death  of  the  testator.  Hut  this  is  only  a  rub;  of  legal  or  judicial  con- 
struction for  the  interpretation  of  such  devises,  and  is  therefore  subject 
to  the  intention  of  the  testator  to  the  contrary,  when  so  indicated  in 
the  will  itself;  as  where  the  devise  is  to  the  children,  or  to  the  brothers 
and  sisters  then  livir.g,  or  to  such  as  may  be  born  before  the  testator's 
death,   or   he   has   indicated   his   intention,  either   by  naming  a   part  of 


DOE  d.  INGRAM  et  al.  v.  G1RARD  et  al.        277 

them  or  in  some  other  way,  to  limit  and  restrict  the  benefits  of  the  de- 
vise to  a  portion  of  the  general  class  only,  the  rule  is  otherwise,  and 
such  as  are  named  or  thus  indicated  will  alone  be  included  in  the  devise. 
The  testator  had  devised  certain  portions  of  his  real  or  personal  estate  in- 
dividually, and  by  name,  to  his  several  grandchildren  living  at  the  date 
of  his  will,  and  then  added,  "  In  case  I  should  have  any  grandchildren 
or  grandchild  born  between  the  date  of  this  will  and  my  death,  I  give 
and  bequeath  to  every  such  grandchild  so  born,  on  attaining  the  age  of 
twenty-one  years,  the  sum  of  five  hundred  dollars,"  and  in  a  subsequent 
item  of  the  will  he  added  :  "In  case  any  of  my  grandchildren  herein- 
before named  or  referred  to  shall  die  before  the  age  of  twenty-one 
years  without  leaving  issue,  then  the  share  or  portion  of  the  grand- 
ch'M  so  dying  to  go  to  his  or  her  surviving  brothers  and  sisters,  to  be 
equally  divided  between  them."  One  of  the  grandchildren  in  being  at 
the  date  of  the  will,  and  named  in  it,  died  without  issue  after  the  death 
of  the  testator.  Iield  that  such  of  his  brothers  and  sisters  only  as  were 
born  before  the  death  of  the  testator  could  take  any  share  in  the  portion 
of  the  estate  so  devised  to  him  by  the  testator. 

Tuto  vvas  an  action  of  ejectment  brought  by  the  lessors 
of  the  plaintiff,  Thomas  W.  Ingram  and  Caroline  his  wife, 
late  Caroline  Hemphill,  and  Virginia  Hemphill,  to  recover 
their  undivided  shares  in  a  two-story  brick  messuage  or 
tenement  and  lot  of  ground  thereto  belonging,  situate  on 
King  Street',  in  the  city  of  Wilmington,  devised  by  William 
Hemphill,  deceased,  in  his  will  to  his  grandson,  William 
Hemphill,  then  in  the  possession  of  John  A.  Girard  and 
Ellen  his  wife,  late  Ellen  Hemphill,  the  defendants.  The 
facts  were  submitted  for  the  decision  of  the  Court  upon  a 
case  stated,  which  was  as  follows : 

William  Hemphill  in  and  by  his  last  will  and  testament, 
duly  made  and  published  in  his  lifetime,  and  duly  proved 
and  allowed  after  his  death,  devised  and  bequeathed  as 
follows,  viz.  : 

Item  2d.  I  give,  devise  and  bequeath  to  my  grandson, 
William  Hemphill,  his  heirs,  executors,  administrators  and 
assigns,  on  his  attaining  the  age  of  twenty-one  years,  all 
my  other  two-story  brick  messuage  or  tenement  and  lot  of 
ground  thereto  belonging,  with  the  appurtenances,  situate 
on  King  Street  aforesaid,  adjoining  the  last-mentioned  mes- 
suage, and   being  the  same   which  I   bought  of  Michael 


278  SUPERIOR  COURT. 

Lavery,  and  also  the  sum  of  five  hundred  dollars  in  cash, 
and  I  do  will  and  direct  that  the  rent  of  said  house  and  lot, 
after  deducting  therefrom  the  repairs  and  taxes,  and  the 
interest  on  said  sum  of  five  hundred  dollars,  from  my  de- 
cease, he  applied  to  his  maintenance  and  education  during 
his  minority,  by  my  executors. 

Item  3d.  I  give  and  bequeath  to  my  grandchildren,  Ellen 
Hemphill,  Stephen  Girard  Hemphill,  Elizabeth  Hemphill, 
Sarah  Ralston  Jones,  Maria  Jones,  and  James  Hemphill 
Jones,  on  their  respectively  attaining  the  age  of  twenty-one 
years,  the  sum  of  five  hundred  dollars  each;  and  I  do  will 
and  direct  that  the  interest  of  said  sum  of  five  hundred 
dollars,  from  my  decease,  be  applied  by  my  executors  to 
the  maintenance  and  education  of  my  said  grandchildren 
respectively  during  his  or  her  minority. 

Item  4th.  In  case  I  should  leave  any  grandchildren  or 
grandchild  born  between  the  date  of  this  will  and  my 
death,  I  give  and  bequeath  to  every  such  grandchild  so 
born,  on  attaining  the  age  of  twenty-one  years,  the  sum  of 
five  hundred  dollars;  and  I  do  will  and  direct  that  the  in- 
terest of  said  sum  of  five  hundred  dollars,  from  my  decease, 
be  applied  by  my  executors  to  the  maintenance  and  educa- 
tion of  such  grandchildren  or  grandchild  respectively  du- 
ring his  or  her  minority. 

Item  5th.  In  case  any  of  my  grandchildren  hereinbefore 
named  or  referred  to  shall  die  before  attaining  the  age  of 
twenty-one  years,  leaving  issue,  then  I  will  and  direct  that 
such  issue  shall  take  the  share  of  my  estate  which  his  oi- 
lier or  their  parents  would  have  taken  under  this  will ;  and 
in  case  such  grandchild  so  dying  shall  not  leave  lawful 
issue,  then  I  give,  devise  and  bequeath  the  estate  hereby 
given,  devised  and  bequeathed  to  such  grandchild,  to  the 
surviving  brothers  and  sinters  of  such  deceased  grand- 
child,  their  heirs,  executors,  administrators  and  assigns,  to 
be  equally  divided  among  them,  share  and  share  alike. 

And  the  parties  for  greater  certainty  refer  to  said  last  will 
and  testament,  of  record  in  the  office  of  the  Register  lor  the 
Probate  of  Wills  in  and  for  New  Castle  County,  and  agree 


DOE  d.  INGRAM  et  al.  v.  GIRARD  et  al.        279 

that  the  same  and  all  the  provisions  therein  contained  shall 
be  taken  as  part  of  the  case  stated. 

The  said  will  was  dated  November  9,  A.  D.  1821,  and 
William  Hemphill,  the  testator,  died  February  10,  1823. 
William  Hemphill,  Jr.,  the  devisee  named  in  the  item  first 
above  set  forth,  was  born  November  12,  1817,  and  died 
during  the  year  1836  without  issue,  leaving  to  survive  him, 
at  the  time  of  his  decease,  the  following  brothers  and  sis- 
ters, viz. :  Ellen,  wife  of  John  A.  Girard  (who  are  the  ten- 
ants in  possession),  Stephen  G.  Hemphill,  Elizabeth  Hemp- 
hill, Maria  Antoinette  Hemphill,  Virginia  Hemphill,  and 
Caroline,  wife  of  Thomas  R.  Ingram;  the  said  Virginia 
and  Thomas  It.  Ingram  and  wife  being  the  lessors  of  the 
plaintiff.  The  surviving  brothers  and  sisters  were  born 
respectively  at  the  dates  following,  viz. :  Ellen,  on  the  19th 
of  January,  1814;  Stephen,  on  the  11th  of  January,  1819; 
Elizabeth,  on  the  4th  of  February,  1821;  Maria  Antoinette, 
on  the  26th  of  September,  1826 ;  Virginia,  on  the  23d  of 
August,  1828,  and  Caroline,  on  the  2d  of  June,  1831. 

The  aforesaid  testator  was  at  the  date  of  his  will,  and 
thence  until  and  at  his  decease,  seized  in  his  demesne  as  of 
fee  of  the  premises  devised  in  the  item  first  above  set  forth 
to  William  Hemphill,  Jr.,  which  premises  are  the  same  for 
which  the  defendants  defend  the  possession. 

It  is  agreed  that  upon  the  above  statement  of  facts  the 
Court  shall  consider  whether  the  lessees  of  the  plaintiff,  at 
the  time  of  the  demise,  or  either  of  them,  were  seized  of 
or  entitled  to  any  estate  or  share  in  or  of  the  said  premises, 
and  that  judgment  shall  be  entered  according  to  its  opinion 
in  the  premises. 

D.  M.  Bates,  for  the  plaintiff:  Caroline,  the  wife  of 
Thomas  W.  Ingram,  and  her  sister,  Virginia  Hemphill, 
plaintiffs  in  the  action,  are  granddaughters  of  William 
Hemphill,  the  testator,  and  sisters  of  William  Hemphill, 
his  grandson,  the  devisee  named  in  the  first  item  of  the 
will  as  above  stated.  They  were  neither  of  them  born, 
however,  at  the  date  of  the  will,  or  at  the  time  of  the  death 


280  SUPERIOR  COURT. 

of  their  grandfather,  William  Hemphill,  the  testator;  but 
they  were  both  born*  before  the  death  of  their  brother, 
William  Hemphill,  the  devisee;  and  the  only  question  for 
the  Court  to  decide  is,  whether,  under  these  circumstances 
and  the  correct  construction  of  the  fourth  and  fifth  items 
of  the  will,  they  are  entitled  to  any  portion  or  share  of  the 
premises  devised  to  William  Hemphill,  their  brother  and 
the  grandson  of  the  testator,  in  the  second  item  of  the  will, 
being  the  first  item  above  stated,  on  his  death  without 
issue.     I  shall  contend  that  they  are. 

The  words  on  which  this  question  turns  are  to  be  found 
in  the  fifth  item  of  the  will,  which  are  as  follows :  "  In 
case  any  of  my  grandchildren,  hereinbefore  named  or  re- 
ferred to,  shall  die  before  attaining  the  age  of  twentyone 
years,  leaving  issue,  then  I  will  and  desire  that  suah  issue 
shall  take  the  share  of  my  estate,  which  his,  or  her,  or  their 
parents  would  have  taken  under  this  will ;  and  in  case  such 
grandchildren  so  dying  shall  not  leave  lawful  issue,  then  I 
give,  devise,  and  bequeath  the  estate  hereby  given,  devised, 
and  bequeathed  to  such  grandchildren,  to  the  surviving 
brothers  and  sisters  of  such  deceased  grandchildren,  their 
heirs,  executors,  administrators,  and  assigns,  to  be  equally 
divided  among  them,  share  and  share  alike."  William 
Hemphill,  the  grandson  and  original  devisee  of  the  pre- 
mises in  question,  survived  the  testator  several  years,  and 
died  without  issue;  and  in  the  meanwhile,  that  is  to  say, 
between  the  death  of  the  testator  and  his  death,  his  sisters, 
Virginia  and  Caroline,  were  born,  and,  as  they  claim 
under  the  latter  clause  of  the  item  just  read,  of  course  the 
time  when  they  were  to  take  and  enjoy  their  part  of  the 
estate  devised,  as  surviving  sisters  of  William  Hemphill, 
the  devisee,  was  on  his  death  without  issue,  which  was  the 
time  appointed  by  the  will  when  his  surviving  brothers 
and  sisters  were  to  take  the  estate  to  be  equally  divided 
between  them.  But  the  well  established  principle  of  con- 
struction on  this  point  is,  that  when  the  limitation  over  is 
to  ■•  surviving  brothers  and  sisters,"  and  the  period  of  dis- 
tribution  or  enjoyment  of  the  estate   is  postponed,  or  is 


DOE  d.  INGRAM  et  al.  v.  GIRARD  et  al.        281 

appointed  by  the  will  to  take  effect  after  the  testator'e 
death,  all  who  answer  to  this  description,  at  the  time  ap- 
pointed for  the  distribution  or  enjoyment,  are  included  ia 
the  devise,  and  not  such  only  as  were  born  at  the  date  of 
the  will,  or  at  the  time  of  the  death  of  the  testator,  as  wag 
at  one  time  held;  so  that,  surviving  brothers  and  sisters, 
who  were  born  in  the  meantime  between  the  death  of  the 
testator  and  the  death  of  the  devisee  for  life,  are  let  in  to 
take  equally  with  the  surviving-  brothers  and  sisters  who 
were  born  before  the  death  of  the  former.  2  Jarm.  on 
Wills,  56,  58;  3  Brown's  Ch.  Ca.  404;  Comp.  309;  5  Ves. 
Jr.  136;  15  Idem,  122;  1  Cox  Rep.  327;  1  Brown's  Ch. 
Ca.  536 ;  13  East,  526 ;  4  Paige's  Ch.  R.  47 ;  2  Atk.  329. 

Patterson,  for  the  defendants  :  The  rule  of  testamentary 
construction  relied  upon  by  the  plaintiffs  does  not  apply  in 
this  case,  because  the  cases  cited  either  relate  exclusively 
to  bequests  of  personal  property,  or,  if  they  have  reference 
to  devises  of  real  estate,  they  proceed  upon  some  apparent 
intent  of  the  testator,  or  some  particular  circumstance 
from  which  it  was  fair  to  infer  that  such  was  his  intention. 
The  case  cited  from  2  Atk.  329,  was  a  case  of  this  descrip- 
tion. It  was  a  bequest  of  personal  property  to  a  son  of 
the  testator's  daughter,  and  if  he  died  before  twenty-one, 
then  to  the  other  children  of  the  testator's  daughter ;  and 
she  had  no  other  child  or  children  born  before  the  death 
of  the  testator;  for  which  reason  the  Court  held  that  he 
must  have  contemplated  after-born  children  of  his  daugh- 
ter. And  so  all  the  other  cases  cited  were  analogous 
cases,  pertaining  to  personal  bequests,  or,  if  relating  to  real 
estate,  were  accompanied  with  words  of  qualification  in 
the  devise,  such  as  "  to  issue  begotten,  or  to  be  begotten," 
or  some  equivalent  phrase  or  special  provision  in  the,  will, 
which  clearly  indicated  an  intention  on  the  part  of  the 
testator  to  let  in  or  provide  for  the  after-born  children. 

l>nt,  admitting  the  rule  to  be  a  sound  one,  it  applies 
only  to  surviving  children  ;  but  in  this  case  the  devise  over 
is  to  surviving  brothers  awl  sisters  of  the  deceased  grand- 
ID 


282  SUPERIOR  COURT. 

child.  And  there  is  reason  for  the  distinction  suggested, 
because  the  rule  which  enlarges  a  gift  to  children,  so  as  to 
comprehend  all  who  come  into  being  before  the  period  of 
distribution,  is  peculiar  to  those  favored  objects.  For,  ac- 
cording to  the  general  rules  of  law  in  regard  to  the  vesting 
of  estates  in  other  cases,  and  which  have  been  applied  to 
all  other  classes  of  relations  and  to  other  objects,  the  de- 
vise would  clearly  be  confined  to  such  children  only  as 
were  living  and  in  being  at  the  deatli  of  the  testator.  2 
Jarm.  on  Wills,  52,  74,  78.  But  Mr.  Jarnian  himself  ad- 
mits, on  the  authority  of  several  cases  referred  to  by  him, 
that  we  are  forbidden  to  apply  the  rule  in  question  to  de- 
vises of  real  estate  even  to  children :  2  Jarm.  on  Wills,  638, 
640 ;  although  he  afterwards  adds,  that  it  is  difficult  to  dis- 
cover any  ground  for  the  distinction,  unless  the  reason  is 
to  be  found  in  the  greater  tendency  which  the  law  has 
towards  an  immediate  vesting  of  the  estate  and  interest  of 
the  devisees  in  the  one  case  than  in  the  other. 

But  let  us  recur  again  to  the  matter  of  special  intent 
deducible  from  the  context  of  the  will  to  which  I  have 
before  referred.  Is  there  any  such  intent  apparent  upon 
the  face  of  this  will  ?  I  think  there  is ;  but  it  is  against 
the  admission  of  the  surviving  brothers  and  sisters  born 
after  the  testator's  deatli.  At  the  time  of  making  his  will 
he  had  two  sets  of  grandchildren, — the  children  of  his 
daughter,  Mrs.  Jones,  and  the  children  of  his  son,  Mr. 
John  Hemphill.  Of  the  former  there  were  five,  and  of  the 
latter  there  was  the  same  number  of  grandchildren  living 
at  his  deatli,  William,  Ellen,  Stephen,  and  Elizabeth,  and 
Maria  Antoinette.  The  four  first  named  were  born  before, 
and  the  latter  after  the  making  of  his  will,  but  before  his 
decease.  The  other  two,  Virginia  and  Caroline,  were  born 
after  his  death,  but  before  the  decease  of  their  brother 
William.  And  yet,  with  the  four  first  named  already  born 
at  the  date  of  his  will,  and  evidently  anticipating  that 
others  might  thereafter  be  born,  he  yet  saw  proper  in  the 
fourth  item  of  his  will  to  make  provision  for  the  living  and 
his  after-born  grandchildren  in  these  restricted  terms  :  uln 


DOE  d.  INGRAM  et  al.  v.  GIRARD  et  al.        283 

case  I  should  leave  any  grandchildren  or  grandchild  born 
between  the  date  of  this  will  and  my  death,  I  give  and 
bequeath  to  every  such  grandchild  so  born,  on  attaining 
the  age  of  twenty-one  years,  live  hundred  dollars,"  &c. 
And  immediately  afterwards,  in  the  succeeding  item  of 
the  will  containing  the  devise  in  question,  follow  these 
words  :  "  In  case  any  of  my  grandchildren,  above  named  or 
referred  to,  shall  die,"  &c,  that  is  to  say,  without  lawful 
issue,  then  he  gives  and  devises  the  estate  devised  to  "such 
grandchild  so  dying,  to  the  surviving  brothers  and  sisters 
of  such  deceased  grandchild."  But  the  grandchildren 
above  referred  to  were  already  expressly  spoken  of  and 
referred  to  by  him  either  as  grandchildren  already  born  at 
the  date  of  his  will,  or  such  as  might  be  born  in  addition 
to  them,  between  that  time  and  the  period  of  his  death ; 
and  the  limitation  over,  on  the  death  of  William  without 
lawful  issue,  being  expressly  confined  to  this  particular 
class  of  his  grandchildren,  there  is  no  reason  in  principle 
for,  and  no  adjudged  cases  to  warrant,  the  enlargement  of 
the  objects  of  the  devise  by  operation  of  the  general  words 
his  "  surviving  brothers  and  sisters,"  so  as  to  embrace  the 
grandchildren  born  after  the  testator's  death.  On  the  con- 
trary, all  the  authorities  are  against  such  a  construction. 
Nor  does  it  weaken  this  view  of  the  case  that  the  devise 
over  to  the  surviving  brothers  and  sisters  is  in  verbis  de 
prcsend,  "  I  give,  devise,  and  bequeath  to  the  surviving 
brothers  and  sisters,"  &c,  because  a  will  speaks  from  the 
death  of  the  testator,  and  words  of  present  donation  apply 
naturally  to  donees  then  in  existence. 

There  are  other  terms  and  provisions  contained  in  the 
will  which  favor  this  view  of  the  devise  in  question.  Tn 
the  introductory  clause  of  it  he  confers  certain  powers 
upon  his  executors  in  regard  to  investing  the  proceeds  of 
certain  portions  of  his  estate  for  the  family,  "  or  such  of 
/A??/?,"  to  use  the  language  of  the  testator,  "  as  are  by  this 
will  to  have  the  benefit  thereof;"  clearly  indicating  by 
this  that  he  did  not  design  to  make  a  general  provision 
for  all  his  grandchildren   without  regard   to  the  periods 


284  SUPERIOR  COURT. 

of  their  birth ;  but  only  for  such  as  were  then  born  or 
might  be  born  before  his  death.  In  the  first  item,  he 
gives  to  his  granddaughter  Elizabeth  II.  Jones,  one  thou- 
sand dollars,  and  a  house  and  lot;  in  the  second  item, 
he  gives  to  his  grandson  William  II.  Jones,  five  hundred 
dollars,  and  a  house  and  lot;  in  the  third  item,  five  hun- 
dred dollars,  and  a  house  and  lot,  to  his  grandson  Wil- 
liam Hemphill;  and  in  the  fourth  item,  to  the  following 
grandchildren  by  name,  Ellen  Hemphill,  Stephen  Girard 
Hemphill,  Elizabeth  Hemphill,  Sarah  R.  Jones,  Maria 
Jones,  and  James  II.  Jones,  five  hundred  dollars  each ; 
from  which  it  is  evident  that  the  testator  did  not  intend 
to  put  all  his  grandchildren  even  then  born,  upon  an 
equal  footing  in  his  testamentary  dispositions  towards 
them,  and  that  he  did  not  mean  to  provide  even  for  these 
equally,  as  a  class  having  equal  claims  upon  his  bounty, 
his  favor  and  regards.  And  if  he  saw  proper  thus  to  dis- 
criminate even  between  these,  who  shall  say,  after  reading 
the  positive  and  explicit  restriction  contained  in  the  fifth 
item  of  his  will,  that  he  had  not  the  right  and  did  not  in- 
tend to  limit  and  confine  this  discrimination  of  his  subse- 
quent bounty  and  beneficence  to  such  grandchildren  as 
should  afterwards  be  born  between  that  time  and  his 
death  ?  Besides,  such  words  of  survivorship  can  never 
have  the  effect  to  enlarge  the  operation  of  the  devise  against 
the  express  provisions  of  the  will,  or  the  obvious  intention 
of  the  testator  apparent  upon  the  face  of  it. 

U.  31.  -Bates:  Virginia  and  Caroline  were  born  after 
the  death  of  the  testator,  it  is  true,  but  before  the  death  of 
their  brother  William  Hemphill,  the  devisee  for  life,  as  it 
turned  out  to  be.  The  limitation  over  after  his  death 
was  therefore,  by  the  terms  of  the  will,  a  contingent  limit- 
ation. I  do  not  know,  however,  that  this  is  material  in 
the  case.  It  was  a  contingent  limitation,  because  the  de- 
vise over  after  his  death  without  issue,  was  to  his  surviving 
brothers  and  sisters,  which  was  at  the  time  uncertain. 
This  being  the  case,  I  shall  again  state  the  general  rule  of 


DOE  d.  INGRAM  et  al.  v.  GIRARD  et  al.        285 

construction  on  which  the  plaintiffs  rely,  and  it  is  this: 
where  a  devise  or  bequest  is  made  to  a  class  of  persons  to 
vest  on  a  future  contingency,  it  takes  in  all  who  answer 
the  description,  or  are  comprehended  within  the  class 
when  the  contingency  occurs,  even  though  they  may  have 
come  in  esse  since  the  death  of  the  testator.  There  are 
abundant  authorities  for  this,  both  in  devises  of  real  and 
in  bequests  of  personal  estate,  and  I  have  already  cited  a 
number  of  them.  The  reason  of  the  rule  is  a  very  simple 
and  very  sound  one.  It  is  because  the  objects  of  the  tes- 
tator's bounty  in  such  a  case  are  not  individuals,  but  con- 
sist of  and  comprehend  a  class,  and  the  consideration  on 
which  it  proceeds  is  the  common  and  equal  relation  in 
which  they  all,  as  a  class,  stand  to  the  testator,  or  some 
one  else,  and  therefore  all  answering  the  general  descrip- 
tion, or  comprehended  in  the  common  relation  when  the 
contingency  happens,  are  to  take  as  equal  objects  of  the 
testator's  bounty.  In  addition  to  the  cases  before  cited  in 
the  opening,  I  will  refer  the  Court  to  the  following  au- 
thorities in  support  of  this  principle  and  rule  of  construc- 
tion. Ellison  v.  Airey,  1  Ves.  iSr.  Ill;  Congreve  v.  Con-' 
greve,  3  Bro.  Ch.  Ca.  530;  Leak  v.  Robinson,  2  3Ierir.  362; 
Deacistie  v.  Mellon,  3  Bro.  (Jh.  Ca.  537;  Clark  v.  Clark,  11 
Eng.  Ch.  Rep.  318;  Western  v.  looter,  7  Mete.  299;  2  Jarm. 
on  Wills,  74  et  scg.  This  rule,  which  has  not  been  im- 
pugned in  itself  upon  the  other  side,  applies  equally  to 
devises  of  real  estate  and  to  bequests  of  personal  property. 
The  cases  which  I  have  cited  from  3  Bro.  Ch.  Ca.  530; 
Comp.  309;  1  Cor,  326;  and  2  Meriv.  362  ;  were  all  cases  of 
devises  of  real  estate.  And  the  rule  is  the  same  whether 
the  limitation  over  is  to  children,  or  to  brothers  and  sisters  ; 
because  in  the  first  instance,  the  objects  are  designated  by 
their  filial,  and  in  the  latter,  by  their  fraternal  relation,  and 
arc  substantially  the  same.  As  to  the  aid  which  the  other 
side  imagine  they  have  derived  in  discovering  the  inten- 
tion of  the  testator,  which  is  to  override  this  rule  of  con- 
struction ;  from  the  context  of  the  will  and  the  verbal 
criticism  and  dissection  of  detached  phrases  and  passages 


286  SUPERIOR  COURT. 


contained  in  it,  one  remark  will  suffice,  I  think,  to  dispose 
of  the  whole  of  it.  They  consider  and  interpret  the  lim- 
itation or  provision  contained  in  the  fifth  item  of  the  will, 
and  which  is  confined  to  grandchildren  born  after  the  date 
of  the  will  and  before  the  death  of  the  testator,  to  apply 
to  the  premises  in  question  devised  to  William  Hemphill, 
the  grandson,  whilst  I  understand  and  maintain  that  it 
was  only  intended  to  provide  that  if  there  should  be  any 
grandchildren  so  born,  they  should  have  a  legacy  of  five 
hundred  dollars  each,  the  same  as  the  grandchildren  al- 
ready born  at  the  date  of  the  will ;  and  although  the  tes- 
tator refers  in  the  succeeding  clause  of  his  will  to  this 
item,  when  speaking  of  his  grandchildren,  as  "  before 
named  or  referred  to,"  yet  there  is  nothing  and  can  be  no- 
thing in  a  mere  reference  like  this,  to  indicate  an  inten- 
tion to  exclude  the  grandchildren  born  after  his  death, 
from  taking  a  share  of  the  house  and  lot  devised  to  his 
grandson  William  Hemphill,  on  his  death  without  issue, 
or  to  warrant  a  departure  from  the  well-established  rule 
for  which  I  have  contended,  in  the  construction  of  this 
devise. 

Houston,  J.,  delivered  the  opinion  of  the  Court:  This 
case  has  been  argued  twice  before  the  Court ;  once  before 
the  present  Chief  Justice  camo  upon  the  bench,  and  again 
at  this  term.  The  question  involved  in  it  has,  therefore, 
been  maturely  considered  and  well  discussed  by  the  coun- 
sel on  both  sides,  and  I  now  proceed  to  announce  the 
opinion  of  the  Court  upon  it. 

There  is  no  doubt  about  the  general  principle,  or  abstract 
rule  of  legal  construction,  in  regard  to  the  testamentary 
dispositions,  stated  and  relied  upon  in  this  ease  by  the 
counsel  for  the  plaintiff".  It  is  true,  it  was  a1"  one  time 
considered  that  only  the  children  who  were  in  being  at 
the  time  of  executing  the  will  could  take  under  such  a 
devise,  and  that  it  was  afterwards  held,  that  as  the  will 
took  effect  from  the  death  of  the  testator  and  not  before, 
all  who  were  born  and  in  being  at  that  time  were  equally 


DOE  d.  INGRAM  et  al.  v.  GIRARD  et  al.        287 

entitled  to  the  benefits  of  it.  But  later  decisions  have  still 
farther  enlarged  these  devises  in  certain  cases,  both  in 
relation  to  real  and  personal  estate,  and  the  general  rule 
of  construction,  as  stated  and  deduced  from  the  authori- 
ties cited,  is  now  too  well  established  to  be  doubted  or 
denied.  Still,  it  is  only  a  rule  of  legal  or  judicial  con- 
struction, in  the  interpretation  of  such  devises,  and  as 
there  is  nothing  of  a  technical  character  in  the  force  and 
operation  of  it,  like  other  general  rules  of  testamentary 
construction,  it  has  always  been  held  to  be  subject  and 
subordinate  to  the  intention  of  the  testator  to  the  contrary, 
when  so  indicated  in  the  will  itself.  2  Jarm.  on  Wills,  74; 
Annablcs  v.  Patch,  3  Pick.  364;  Dinghy  v.  Dingley,  5  Mass. 
537.  In  the  latter  case,  which  was  a  devise  similar  to 
this,  Parsons,  Ch.  J.,  remarks:  "The  expression  in  the 
will  is  general,  '  to  be  divided  between  his,  Abner's,  sons,' 
which  includes  all  his  sons.  If  he  had  intended  to  confine 
his  bounty  to  his  grandchildren  then  living,  he  would  have 
so  limited  it,  either  expressly,  or  by  naming  them,  or  in 
some  other  way." 

The  general  rule,  which  has  been  correctly  stated,  we 
understand  to  be  this :  When  the  devise  or  bequest  is  to 
children,  or  to  brothers  and  sisters  generally,  as  a  class, 
without  mentioning  them  individually  by  name,  and  the 
time  appointed  for  the  possession,  or  distribution  of  the 
property,  is  deferred  until  after  the  death  of  the  testator, 
or  is  dependent  upon  a  future  contingency  which  does  not 
occur  until  after  his  decease,  it  will  embrace  all  the  chil- 
dren, or  all  the  brothers  and  sisters;  or,  in  other  words,  all 
the  objects  who  compose  the  class  in  being  when  the  con- 
tingency happens,  or  the  appointed  period  for  the  distribu- 
tion or  enjoyment  of  the  property  arrives,  whether  born 
before  or  after  the  death  of  the  testator.  But,  as  we  have 
before  observed,  this  is  not  the  rule,  lor  it  has  no  applica- 
tion to  the  case,  when  the  testator  has  expressly  limited 
his  bounty  to  a  portion  of  the  class,  as  to  the  children,  or 
the  brothers  and  sisters  then  living,  or  such  as  may  be 
born  before  his  death,  or  he  has  indicated  his  intention, 


288  SUPERIOR  COURT. 

either  by  naming  a  part  of  tliem,.or  in  any  other  way  so 
to  limit  or  restrict  the  benefits  of  the  devise  to  a  portion 
of  the  general  class  only. 

And  if  such  only  is  the  extent  and  operation  of  the  rule 
in  question,  is  there  no  purpose  or  intention  apparent  in 
the  several  items  and  provisions  of  this  will,  in  relation  to 
his  grandchildren,  which  indicates  a  design,  on  the  part  of 
the  testator,  to  restrict  every  devise  and  bequest  contained 
in  it,  so  far  as  it  relates  to  them,  to  a  part  of  them  only; 
that  is  to  say,  to  such  only  as  should  be  in  existence  at  his 
death?  We  think  there  is;  for,  in  the  first  place,  all  of 
them  who  were  born  and  in  being  at  the  date  of  the  will, 
are  respectively  and  individually  named  and  referred  to  in 
some  item  or  other  of  it,  and  they  are  severally  provided 
for  by  immediate  gifts  of  real  or  personal  estate,  or  both, 
as  his  grandchildren  then  living  at  the  date  of  his  will.  But 
not  content  to  stop  here,  he  afterwards  proceeds,  in  a  sub- 
sequent provision  of  the  will,  to  say :  "In  case  I  should 
have  any  grandchildren,  or  grandchild,  born  between  the 
date  of  this  will  and  my  death,  I  give  and  bequeath  to 
every  such  grandchild  so  born,  on  attaining  the  age  of 
twenty-one  years,  the  sum  of  five  hundred  dollars,"  which 
was  in  amount  just  the  same  legacy  which  lie  had  before 
bequeathed  to  several  of  his  grandchildren  respectively, 
who  were  then  in  beinir  at  the  time  of  making  his  will. 
If  he  did  not  intend,  so  far  as  he  has  thus  proceeded  in  the 
preparation  and  expression  of  his  will  with  regard  to  them, 
to  limit  and  confine  his  bounty  towards  them  to  such  as 
were  then  born,  and  might  be  born,  between  the  date  of 
his  will  and  the  time  of  his  death,  why  should  he  have 
employed  terms  of  such  unequivocal  and  positive  restric- 
tion in  this,  the  only  clause  of  his  will  which  contains  any 
express  or  necessary  reference  to  his  prospective  and  future 
grandchildren  at  all?  And  in  the  next  succeeding  item 
he  adds  :  "  In  case  any  of  niv  grandchildren,  hereinbefore 
named  or  referred  to.  shall  die  before  the  age  of  twenty-one 
years,  leaving  issue,"  then  the  issue  are  to  take  the  share 
or  portion  of  his  estate  which  the  parent  would  have  taken 


DOR  d.  INGRAM  etal.  v.  GIRARD  etal.        289 

if  living;  but  if  any  should  die  without  issue,  then  the 
share  or  portion  of  the  grandchild  so  dying  is  to  go  to  his 
or  her  "surviving  brothers  and  sisters,"  to  be  equally 
divided  between  them.  The  words,  "grandchildren  here- 
inbefore named,  or  referred  to,"  seem  not  only  to  be  sus- 
ceptible of  a  very  simple  explanation,  but  also  to  have  a 
very  plain  and  appropriate  meaning  and  relation  to  what 
has  before  preceded  them  in  the  will;  for  all  his  grand- 
children who  were  then  born,  and  whom  he  could  therein- 
before name,  he  had  already  severally  named  in  his  pre- 
ceding devises,  or  bequests,  to  them  individually  and 
respectively;  and  such  as  he  could  not  name,  from  the  fact 
that  they  were  not  yet  in  being,  he  had  referred  to  as  his 
grandchildren  who  might  be  born  between  the  date  of  his 
will  and  the  period  of  his  death.  And  having  thus  indi- 
cated and  expressed  a  clear  and  explicit  intention,  as  we 
think,  throughout  the  previous  provisions  of  his  will,  to 
limit  and  restrict  to  such  of  his  grandchildren  as  were  then 
born,  and  those  who  should  thereafter  be  born  before  his 
death,  all  the  immediate  and  prospective,  or  vested  and 
contingent  limitations  of  his  bounty,  whether  given  to 
them  presently  and  severally  in  the  first  instance,  or  col- 
lectively and  in  common,  by  way  of  remainder,  afterwards, 
it  seems  to  us  it  would  be  extremely  unreasonable,  if  not 
absurd,  to  suppose  that  he  would  suddenly  drop  and  depart 
from  his  original  and  well-defined  intention,  as  thus  exhi- 
bited and  preserved  throughout  the  preceding  portions  of 
it,  almost  in  the  last  four  words  of  his  will,  having  any 
relation  to  these  parties,  when  he  comes  to  wind  up  and 
finally  dispose  of  the  remote  and  ultimate  contingencies  of 
these  devises  and  bequests  to  the  "  surviving  brothers  and 
sisters"  of  his  grandchildren,  thereinbefore  named,  or  re- 
ferred to,  as  then  existent,  or  to  be  born  before  his  death. 
But  read  in  the  connection  in  which  these  latter  words 
stand  with  the  foregoing  provisions  of  the  will,  they  have 
relation  to  the  objects,  or  the  grandchildren  before  named 
or  referred  to,  and  consist  of  the  same  class  to  which  his 
bounty  had  been  expressly  limited  and  restricted  in  the 


290  SUPERIOR  COURT. 


preceding  provisions  of  it,  in  regard  to  these  grandchildren 
of  the  Hemphill  stock;  for  the  words,  "  surviving  brothers 
and  sisters,"  in  this  case,  import  and  mean  the  same  per- 
sons, as  if  the  testator,  instead  of  adopting  this  phrase,  had 
used  the  words,  "my  surviving  grandchildren  above  named 
and  referred  to,  of  that  branch  or  stock;"  but  there  being 
grandchildren  of  the  name  of  Jones,  as  well  as  Hemphill, 
who  were  only  collaterally  related,  and  between  whom,  of 
course,  he  intended  to  create  no  cross  limitations  over,  in 
this  or  any  of  the  other  items  of  the  will,  it  was  more  con- 
cise and  convenient  for  him,  in  this  passage  of  the  will,  to 
drop  the  relation  in  which  they  stood  to  himself  as  his 
grandchildren,  and  to  speak  of  them  as  "surviving  brothers 
and  sisters,"  in  their  relation  to  each  other.  We  are,  there- 
fore, of  the  opinion  that  there  is  nothing  in  these  words,  in 
the  present  case,  when  taken  in  the  connection  and  rela- 
tion in  which  they  stand  to  the  rest  of  the  will,  and  when 
correctly  interpreted  and  understood,  which  can  have  the 
effect  to  enlarge  the  operation  of  the  devise  in  question,  so 
as  to  include  any  of  the  surviving  brothers  and  sisters  of 
William  Hemphill,  the  grandson  and  devisee;  or  (which  is 
the  same  thing  expressed  in  other  words)  any  of  the  sur- 
viving grandchildren  of  the  testator,  born  after  his  death. 
We  must,  therefore,  give  judgment  for  the  defendants. 


John  n.  Fromberger  v.  George  W.  Karsner. 

No  writ  of  capias  ad  satisfaciendum  can  issue  on  a  joint  judgment  against 
several  defendants,  two  of  whom  were  free  white  citizens  of  the  State, 
notwithstanding  the  other  defendant  in  the  judgment  was  a  non-resi- 
dent, and  the  other  two  were  not  arrested  under  the  writ  and  took  no 
exceptions  to  it,  without  an  affidavit  of  fraud  tiled. 

Narr  in  trespass  for  false  imprisonment,  to  which  the 
defendant  pleaded  a  justification,  that  under  a  judgment 


FROMBERGER  v.  KARSNER.  291 


in  the  Superior  Court  for  New  Castle  County  in  favor  of 
Rathmell  Wilson  for  the  use  of  the  defendant,  against 
Fromberger  and  two  others,  a  writ  of  capias  ad  satisfacien- 
dum was  issued  to  the  sheriff  of  the  county,  by  virtue  of 
which  Fromberger,  one  of  the  joint  defendants  in  the  judg- 
ment and  writ,  who  was  a  non-resident,  was  arrested  and 
detained  as  alleged  in  the  narr.  The  replication  to  the 
plea  was  that  at  the  time  of  the  issuing  of  the  ca.  sa.  Samuel 
Higgins,  one  of  the  defendants  against  whom  it  issued,  was 
a  free  white  citizen  of  the  State,  resident  therein,  and  that 
no  affidavit  was  made  before  issuing  the  writ  as  required 
by  law;  to  which  the  defendant  entered  a  general  de- 
murrer. 

Rodney,  for  the  defendant:  The  plaintiff  by  his  replica- 
tion assumes  that  a  ca.  sa.  cannot  issue  against  one  of  two 
persons  in  a  joint  judgment.  But  the  question  is,  is  the 
replication  an  answer  to  the  plea  of  justification  ?  The  fact 
of  Fromberger's  non-residence  is  admitted  by  the  plead- 
ings in  the  case.  The  judgment  is  against  several,  and  the 
ca.  sa.  issued  against  them  all,  following  the  judgment. 
The  replication  is  in  relation,  however,  to  only  one  of 
them,  and  the  first  question  to  be  determined  is,  does  such 
a  replication  meet  the  plea  of  justification?  I  submit  that 
it  does  not. 

James  A.  BayaM,  for  the  plaintiff:  The  defendant  justi- 
fies the  arrest  of  Fromberger  under  the  judgment  against 
the  three  joint  defendants  in  it.  Fromberger  being  a  non- 
resident was  arrested  under  the  ca.  sa.  which  issued  against 
them  all,  and  the  question  is,  can  a  person  under  our  sta- 
tute, who  has  a  judgment  against  three  persons,  one  of 
whom  is  a  non-resident,  issue  a  ca.  sa.  upon  it,  which,  of 
course,  must  follow  the  judgment  and  issue  against  them 
all,  without  an  affidavit  of  fraud?  We  maintain  that  he 
cannot;  and  such  a  writ  is  not  only  voidable,  but  abso- 
lutely void  by  the  express  terms  of  the  statute,  when  issued 
against  a  citizen  of  the  State  without  such  affidavit.     There 


292  SUPERIOR  COURT. 

is  a  distinction  in  this  respect  in  pleading  between  a  void- 
able and  a  void  process,  the  latter  constituting  no  legal 
justification  for  the  arrest,  while  the  former  does. 

Rodney:  The  other  two  defendants  in  the  judgment 
make  no  objection  to  the  ca.  sa.  and  have  not  been  ar- 
rested under  it.  No  one  has  been  arrested  but  From- 
berger,  who  is  a  non-resident,  and  who  cannot  in  his  own 
right  claim  to  be  exempt  from  such  a  writ.  Can  lie,  then, 
avail  himself  of  the  exemption  of  the  other  defendants, 
when  he  has  no  claim  to  be  exempt  himself,  and  they  take 
no  exception  to  the  process  and  have  not  been  affected 
by  it? 

By  the  Court:  We  must  give  judgment  for  the  plaintiff 
on  the  demurrer.  Under  the  statute  no  writ  of  capias  ad 
satisfaciendum  could  issue  on  the  judgment  against  the  de- 
fendants, two  of  whom  were  free  white  citizens  of  the 
State,  without  an  affidavit  in  conformity  with  its  require- 
ments, notwithstanding  Fromberger,  the  other  defendant 
in  the  judgment,  was  a  non-resident.  The  writ  must  pur- 
sue the  judgment,  and  must  include  all  the  defendants 
when  the  judgment  is  against  several  jointly.  2  Tidd's  Pr. 
1027.  And  yet  the  statute  enacts  that  no  ca.  sa.  shall  issue 
against  a  free  white  citizen  of  the  State  without  an  allega- 
tion of  fraud  supported  by  affidavit.  The  process  was 
therefore  void  from  its  inception,  and  being  so,  of  course, 
it  was  void  as  to  all  and  each  of  the  defendants  in  the  judg- 
ment. 


TRUSTEES,  ETC.,  v.  HOLCOMB.  293 


Trustees  of  New  Castle  County  Common,  Plaintiffs  be- 
low, Appellants,  v.  Chauncey  P.  Holcomb,  Defendant 
below,  Respondent. 

An  appeal  from  a  justice  of  the  peace,  where  the  cause  of  action  survives, 
will  not  abate  by  the  death  of  the  respondent  after  the  appeal  is  taken 
and  the  transcript  is  filed  in  Court,  but  before  citation  is  served  upon 
him  ;  and,  under  such  circumstances,  a  scire  facias  will  lie  to  make  his 
executor  a  party  to  the  appeal  in  Court. 

This  was  an  appeal  from  a  justice  of  the  peace.  The 
action  was  for  rent.  After  the  appeal  was  taken,  and  the 
transcript  of  the  record  below  had  been  filed  in  this  Court, 
and  citation  had  been  issued,  but  before  it  was  served  upon 
the  defendant  below,  he  died,  and  it  was  returned  mortuus 
est.  The  appeal  was  entered  to  May  Term,  1855,  and  the 
defendant  died  in  the  month  of  April  preceding.  An  alias 
citation  was  issued  to  his  executor  in  October,  185G,  re- 
turnable to  the  present  term. 

L.  E.  Wales,  for  respondent,  now  obtained  a  rule  upon 
the  appellants  to  show  cause  wherefore  the  appeal  should 
not  be  dismissed.  On  the  hearing  the  question  arose 
whether  the  appeal  had  not  abated  by  the  death  of  the 
respondent  before  the  service  of  the  citation,  or  whether 
a  scire  fadias  could  issue  in  the  case,  under  the  provision  of 
the  Constitution,  to  make  his  executor  a  party  to  the  appeal. 
For  the  respondent,  it  was  contended,  that  the  appeal 
had  abated  by  the  death  of  the  defendant  below  before 
the  service  of  the  citation,  which  was  necessary  to  make 
him  a  party  to  the  action  in  this  Court;  but  if  the  Court 
should  be  of  opinion  that  the  appeal  had  not  abated,  and  a 
scire  facias  would  lie,  it  was  then  too  late  to  issue  it,  and 
the  appeal  should  be  dismissed  tor  the  want  of  due  dili- 
gence in  the  prosecution  of  it. 

The  Court,  however,  discharged  the   rule,  and  held  that 


294  SUPERIOR  COURT. 

the  appeal  had  not  abated  under  the  circumstances,  and 
that  a  scire  facias  would  lie  to  make  the  executor  a  party 
respondent  to  it  in  this  Court. 

Wolfe,  for  appellants. 

L.  E.  Wales,  for  respondent. 


Julius  F.  Vogle  v.  The  New  Granada  Canal  and  Steam 
Navigation  Company  of  New  York. 

A  foreign  corporation  is  not  liable  to  a  foreign  attachment  under  the 
statute  in  regard  to  such  attachments.  A  corporation  cannot  put  in 
special  bail  to  the  action,  or  be  surrendered  to  bail  when  it  appears,  if 
its  appearance  could  be  compelled  in  this  mode ;  and  the  Legislature 
having  made  no  provision  by  which  this  can  be  done,  the  remedy  of  the 
writ  does  not  apply  to  a  foreign  corporation. 

This  was  a  foreign  attachment  case  against  a  corporation 
out  of  the  State.  The  defendant  obtained  a  rule  upon  the 
plaintift  to  show  cause  wherefore  the  attachment  should 
not  be  stricken  off,  or  otherwise  should  not  be  dissolved 
on  the  defendant's  entering  a  common  appearance  to  the 
action.  They  afterwards,  at  the  same  term,  on  an  affidavit 
filed,  alleging  that  they  had  reason  to  believe  that  Mr.  Pat- 
terson, who  had  appeared  as  attorney  and  counsel  for  the 
defendants  in  the  attachment,  had  no  authority  from  the 
defendants  to  appear  as  such  counsel,  obtained  a  rule  upon 
the  counsel  to  show  cause  wherefore  he  should  not  produce 
his  warrant  and  authority  to  appear  as  counsel  in  the  cause 
for  the  defendants. 

Patterson,  for  the  defendants,  now  showed  cause  on  the 
latter  rule.  Any  creditor  of  the  party  attached,  or  attorney 
of  this  Court,  as  amicus  curia:,  may  appear,  and  lias  a  right 
to  be  heard  before  the  Court,  to  show  that  its  process  has 


VOGLE  v.  NEW  GRANADA  CANAL  CO.    295 

been  abused,  or  has  been  irregularly  or  improperly  issued, 
and  should  be  set  aside,  and  the  Court  will  hear  him  for 
that  purpose.  Serg.  on  Attachm.  144,  147.  It  is  not  neces- 
sary, however,  that  I  should  shelter  myself  under  this 
general  principle  of  law  and  practice ;  for,  independent  of 
this,  I  am  prepared  to  prove  that  I  have  a  good  and  valid 
authority  for  appearing  as  counsel  and  attorney  in  the  case 
for  the  defendants.  He  then  called  Daniel  M.  Bates,  Esq., 
as  a  witness,  by  whom  he  proved  his  authority. 

D.  M.  Bates,  for  the  defendants,  now  showed  cause  on 
the  first  rule.  The  first  question  to  be  considered  is  this : 
Can  a  foreign  attachment  be  issued  against  a  foreign  cor- 
poration ?  This  is  a  new  process,  unknown  to  the  common 
law,  and  a  mere  creature  of  the  statute,  and  must  therefore 
be  in  strict  conformity  with  its  provisions.  19  Wend.  49. 
But  the  question  may  arise  in  the  argument  and  conside- 
ration of  the  case,  whether  such  an  attachment  will  lie  by 
the  custom  of  London  ;  and  I  maintain  that  it  has  never 
been  so  decided  and  that  it  will  not.  Serg.  on  Attachm.  61 : 
1  Mod.  212;  2  Show.  372.  But,  whatever  may  be  the  cus- 
tom of  London  on  this  point,  I  shall  contend  that  it  is  not 
material  in  this  case,  because  it  depends  solely  on  our  own 
statute  in  regard  to  attachments,  which  does  not  include 
foreign  corporations ;  for  the  word  person,  employed  in  the 
statute,  does  not  and  was  not  intended  to  embrace  corpora- 
tions, or  any  other  than  natural  persons.  4  Serg.  $  Bawle, 
563;  Rev.  Code,  chap.  101.  Domestic  attachments,  under 
our  law,  have  no  application  to  domestic  corporations;  and, 
if  so,  there  is  no  reason  why  foreign  attachments  under  it 
should  have  any  application  to  foreign  corporations.  That 
they  are  not  within  the  letter  of  the  law,  will  hardly  be 
disputed;  but  it  may  be  insisted  that  they  conic  within  the 
spirit  and  policy  of  it.  On  this  point  I  shall  refer  to  the 
well-settled  rule  of  construction,  to  be  found  in  Dwar.  on 
Stat.,  10  Law  Libr.  703.  Foreign  corporations  are  not 
contemplated    or  embraced   in    the   remedy  provided   by 


296  SUPERIOR  COURT. 

foreign  attachment.    Ang.  Sc  Ames  on  Corp.  395;  McQueen 
v.  The  Middlelown  Man.  Co.,  16  Johns.  4. 

On  the  second  and  alternative  branch  of  the  rule,  in  case 
the  Court  should  be  of  opinion  that  the  attachment  will 
lie,  the  defendants  have  a  right  to  enter  a  common  appear- 
ance, and  thereby  dissolve  it,  because  the  object  is  merely 
to  compel  an  appearance  by  a  defendant  who  is  out  of  the 
reach  of  the  process  of  the  Court.  1  Bac.  Abr.  689;  Serg. 
on  Attachm.  1,  6,  130;  2  Serg.  £  Rawle,  224.  Why  is  it 
provided  that  foreign  attachment  in  all  cases  may  be  dis- 
solved on  entering  special  bail?  It  is  because  the  only 
cases  contemplated  in  our  attachment  law,  and  also  by  the 
custom  of  London,  to  which  they  shall  apply,  are  cases  of 
indebtedness,  in  which  special  bail  could  be  required  if  the 
debtor  was  within  the  jurisdiction  of  the  Court.  It  is  true 
that  our  recent  statute  on  the  subject  goes  further  than  the 
former  act,  and  seems  to  contemplate  cases  in  which  spe- 
cial bail  could  not  be  required,  if  the  defendant  was  within 
the  jurisdiction  of  the  Court,  and  to  include  cases  in  which 
a  capias  ad  respondendum  could  not  issue,  and  in  which  a 
summons  only  would  lie,  and  in  which  only  an  appearance 
by  attorney  could  be  compelled,  as  in  the  case  of  a  corpo- 
ration. The  Court  cannot  impose  on  this  corporation  any 
other  or  more  stringent  conditions  of  appearance  than  it 
can  impose  on  its  own  citizens,  without  infringing  that 
provision  of  the  Federal  Constitution  which  secures  to  the 
citizens  of  each  State  the  privileges  and  immunities  of  the 
citizens  of  the  several  States.  3  Story  on  (he  Const.,  sees. 
1799,1800;  2  Howard,  568;  Ang.  #  Ames  on  Corpor.  400. 
lint  the  Court  has  no  power  under  our  statute  to  compel 
these  defendants  to  give  security,  or  to  impose  any  other 
terms  upon  them  than  on  a  domestic  corporation;  and  as 
the  Court  could  not  oblige  a  domestic  corporation  to  give 
security,  or  to  enter  into  special  bail,  it  cannot  do  it  in  the 
case  of  a  foreign  corporation.  2  Binncy,  204.  The  death 
of  the  defendant  after  interlocutory  judgment  destroyed 
the  attachment,  because  there  is  no  party  defendant  in 
Court,  and  because  executors  and   administrators  are  not 


VOGLE  v.  NEW  GEANADA  CANAL  CO.    297 

liable  to  enter  special  bail,  and  because  no  foreign  attach- 
ment can  issue  against  them.  Serg.  on  Aitachm.  133.  Again, 
the  rule  is,  wherever  on  a  capias  the  Court  would  order 
common  bail,  they  will  dissolve  the  attachment.  Serg.  on 
Aitachm.  135. 

L.  E.  Wales,  for  the  plaintiff:  The  defendants  in  this  at- 
tachment are  involved  in  debt,  and  much  embarrassed,  and 
since  this  writ  was  sued  out  to  which  they  object  so  strenu- 
ously, they  have  assented  to  the  issuing  of  other  foreign 
attachments  against  them  out  of  this  Court,  at  the  suit  of 
other  creditors  for  whom  they  have  a  preference,  and  to 
which  they  have  entered  a  common  appearance,  had  them 
dissolved,  and  then  confessed  judgment  in  favor  of  those 
creditors  for  the  amount  of  their  demands;  and  the  object 
now  is  to  get  rid  of  this  attachment,  which  was  issued  prior 
to  the  others,  for  the  benefit  of  these  preferred  creditors. 

A  foreign  attachment  will  lie  against  a  foreign  corpora- 
tion, and  can  only  be  dissolved  on  giving  bail  to  secure 
the  condemnation-money  and  costs.  1  Mod.  212;  aSVt<7. 
on  Aitachm.  70;  15  Serg.  $•  Rawk,  173;  Ang.  £  Ames  on 
Corp.  336.  If  the  defendants  in  this  case  cannot  be  per- 
mitted to  give  special  bail,  it  is  their  misfortune.  It  is  a 
privilege  to  be  allowed  to  enter  into  special  bail,  and  if 
they  are  not  entitled  to  the  privilege  under  our  attachment 
law  it  is  a  casus  omissm  in  that  respect,  but  does  not  pre- 
vent or  defeat  the  attachment.  The  process  is  a  proceed- 
ing in  rem,  to  compel  the  appearance  of  a  non-resident 
debtor,  and  to  give  security  for  the  debt.  4  Serg.  £ 
ItawlCy  567;  Lock  on  Aitachm.  2.  55. 

MeCaulley,  on  the  same  side:  The  first  objection  raised 
to  this  process  is,  that  foreign  corporations  are  not  within 
our  attachment  law.  Now,  the  word  person  may  include 
corporations,  unless  they  are  expressly,  or  by  necessary 
construction  and  implication  excluded,  because  they  are 
artificial  persons,  and  are  rapidly  multiplying  in  every  State 
of  the  Union.     The  right  to  dissolve  the  attachment  un- 

20 


298  SUPERIOR  COURT. 

doubtedly  applies  in  all  cases  where  the  writ  may  issue; 
but  how  is  this  to  be  done  ?  By  appearing  and  giving 
special  bail  to  the  action.  The  object  of  the  attachment 
is  to  secure  the  payment  of  the  debt  out  of  the  property 
attached,  and  to  give  the  attaching  creditor  a  title  to  the 
property  by  operation  of  law.  2  Kail's  Com.  401.  A  sta- 
tute which  restrains  all  persons  from  doing  any  act,  applies 
to  corporations  as  well  as  natural  persons.    15  Johns.  358. 

Patterson,  for  the  defendants :  The  rule  is  that  when  per- 
sons are  mentioned  in  a  statute,  corporations  are  included, 
if  they  fall  within  the  general  design  and  objects  of  it.  But 
the  phraseology  of  our  attachment  law,  which  provides  for 
the  affidavit  on  which  a  foreign  attachment  is  to  issue,  can- 
not possibly  apply,  and  was  never  intended  to  apply,  to  ar- 
tificial persons  or  corporations;  for  the  form  of  the  affidavit 
requires  that  the  plaintiff  shall  swear,  or  affirm,  that  the 
defendant  is  indebted  to  him  in  a  sum  exceeding  fifty  dol- 
lars, and  resides  out  of  the  State.  Now,  how  can  these 
latter  terms  be  applied  with  any  propriety  to  a  foreign  cor- 
poration, for  who  can  say,  much  less  swear,  where  the 
stockholders  of  a  foreign  corporation  reside,  whether  in  or 
out  of  this  State?  If  such  corporations  were  intended  to 
be  included  in  the  act,  a  form  more  appropriate  would  have 
been  prescribed  to  suit  the  case.  But  it  is  impossible  for 
the  defendants  to  come  into  court  and  enter  into  special 
bail,  which  is  certainly  the  primary  if  not  the  sole  object 
of  the  statute  and  the  process;  for  a  corporation  can  only 
appear  by  attorney,  and  cannot  enter  into  special  bail, 
which  imports  an  actual  personal  appearance.  It  is  there- 
fore manifest  that  the  Legislature  never  intended  to  in- 
clude foreign  corporations  in  the  purview  or  provisions  of 
the  statute,  because  it  would  be  unreasonable  to  suppose 
that  it  would  require  of  any  body,  natural  or  artificial, 
foreign  or  domestic,  to  perform  an  impossibility. 

Iiy  the  Court:  It  has  always  been  our  opinion,  and  in  this 
we  believe  the  bar  of  the  State  has  generally  concurred,. 


BAILEY  v.  WIGGINS.  299 

that  our  act  of  Assembly  in  regard  to  foreign  attachments 
does  not  extend  to  foreign  corporations.  It  is  true  that 
the  word  person,  occurring  in  the  act,  may  and  would  em- 
brace a  corporation,  as  an  artificial,  though  not  a  natural 
person,  if  there  was  nothing  in  the  act  itself,  or  in  the 
mode  of  proceeding,  or  in  the  remedy  authorized  and  pre- 
scribed by  it,  to  preclude  its  application  to  the  case  of  a 
foreign  corporation.  It  is  not  the  object  or  policy  of  the 
law,  however,  to  seize  and  appropriate  the  property  of  any 
debtor  without  a  hearing  and  an  opportunity  of  defence 
against  the  demand,  and  therefore  one  of  the  principal  ob- 
jects of  all  attachment  process,  under  the  act  in  question, 
is  to  compel  the  appearance  of  a  debtor  beyond  the  jurisdic- 
tion of  the  court,  and  to  secure  special  bail  to  the  plaintiff's 
action,  on  which  the  attachment  is  to  be  dissolved  and  the 
property  attached  to  be  discharged ;  and  the  action  is  then 
to  proceed  to  trial  and  judgment  in  the  usual  form.  But  a 
corporation  cannot  put  in  special  bail  or  be  surrendered  to 
bail  when  it  appears,  if  we  could  compel  it  in  this  mode  to 
appear ;  and  as  the  Legislature  has  made  no  provision  by 
which  a  foreign  corporation  can  put  in  special  bail,  or 
enter  into  security  to  the  plaintiff  to  defend  and  abide  the 
result  of  the  action,  when  it  appears  to  the  attachment, 
it  must  be  held  and  considered  that  the  statute  does  not 
contemplate  or  include  the  case  of  a  foreign  corporation. 
The  writ  of  foreign  attachment  in  this  case  must  there- 
fore be  stricken  off,  and  the  first  branch  of  the  rule  made 
absolute. 


Yarnall  Bailey  v.  William  B.  Wiggins. 

In  nn  action  of  trespass  for  false  imprisonment  against  a  justice  of  the 
peace,  or  other  judicial  officer,  evidence  that  it  was  without  probable 
cause  and  from  malicious  motives,  against  the  plaintiff,  is  irrelevant 
and  inadmissible;  because  it  is  immaterial  in  such  action,  provided  he 
did  not  exceed  his  jurisdiction.     "What  constitutes  probable  cause,  when 


300  SUPERIOR  COURT. 

supported  by  oath  or  affirmation,  is  a  question  for  the  decision  of  the 
magistrate,  and  however  erroneously  or  maliciously  he  may  act  in 
determining  it,  he  cannot  be  liable  for  it  in  this  form  of  action. 

When  the  return  to  a  commission  to  take  testimony  states  that  the  de- 
positions were  taken  before  the  commissioner  at  his  office,  with  the 
usual  jurat,  "sworn  and  subscribed  to  before1'  him,  the  presumption  is 
that  they  were  taken  by  him,  and  are  admissible  as  evidence. 

The  statutory  provision,  abolishing  the  common  law  distinction  between 
an  action  of  trespass  and  an  action  on  the  case  (Rev.  Code,  379),  was 
never  intended  to  confound  all  the  rules  of  pleading  and  evidence  here- 
tofore respectively  applicable  to  these  two  actions,  and  to  blend  and 
convert  them  substantially  iijto  one  and  the  same  action.  It  was  only 
designed  to  abolish  the  leading  and  characteristic  distinction  between 
them  at  common  law,  depending  on  the  question  whether  the  injury 
complained  of  was  immediate  or  consequential  only. 

The  very  question  presented  to  the  justice,  upon  a  complaint' made  on  oath 
or  affirmation,  as  the  constitution  requires,  whether  there  is  probable 
cause  for  believing,  from  the  nature  of  the  complaint,  that  a  criminal 
offence  has  been  committed  by  the  party  complained  against,  gives  the 
justice  jurisdiction,  and  constitutes  the  preliminary  inquiry  lying  at  the 
very  threshold  of  his  jurisdiction,  which  he  must  consider,  and  which 
no  one  but  he  can  decide  ;  and  whatever  may  be  his  decision  upon  it,  it 
is  a  decision  clearly  within  his  jurisdiction,  and  whether  right  or  wrong, 
he  is  not  liable  in  a  civil  action  to  any  one  for  it.  As  a  principle  of 
law,  it  is  clearly  established,  that  where  the  committing  magistrate  has 
not  exceeded  his  jurisdiction,  he  cannot  be  liable  in  any  civil  action, 
however  erroneous  may  have  been  his  decision,  or  even  malicious  may 
have  been  his  motives. 


Xarr  in  trespass  for  false  imprisonment.  Pleas,  not 
guilty  and  justification.  The  defendant,  Wiggins,  was  a 
justice  of  the  peace  in  the  city  of  Wilmington,  and  on  the 
11th  of  November,  1851,  issued  a  warrant  to  constable 
Hawkins,  for  the  arrest  of  Bailey,  the  plaintiff,  on  the  oath 
of  Charles  A.  Murphy,  that  a  certain  man  by  the  name  of 
Yarnall  Bailey,  of  low  stature,  stout  frame,  and  full  face, 
with  dark  hair,  &c,  did,  at  the  hundred  of  Christiana,  on 
the  11th  day  of  November,  instant,  by  threats  and  threat- 
ening demonstrations,  cause  to  be  forcibly  taken  from  one 
Thomas  Braceland,  a  bay  horse,  of  the  value  of  sixty  dol- 
lars, and  a  bridle  and  saddle,  of  the  value  of  six  dollars; 
the  said  horse,  bridle  and  saddle,  being  the  property  of 
him,  the  said    Charles   A.    Murphy.     The  same   day   the 


BAILEY  v.  WIGGINS.  301 

plaintiff*  was  arrested  and  brought  before  the  defendant, 
and  on  a  hearing  was  adjudged  by  him  to  enter  into  re- 
cognizance in  the  sum  of  $300,  for  his  appearance  at  the 
next  term  of  the  Court  of  General  Sessions  of  the  Peace, 
and  for  want  of  sufficient  bail  was  committed.  Two  days 
afterwards  he  obtained  bail  and  entered  into  recognizance 
before  the  same  officer,  and  was  released  from  custody. 

It  was  proved  by  the  plaintiff*  that  at  the  time  of  his 
arrest,  he  asked  the  constable  if  he  had  any  warrant  for  it, 
to  which  he  replied  that  he  had,  and  took  a  paper  out  of 
his  hat.  He  then  asked  him  to  read  it,  but  which  he  did 
not.  He  then  asked  him  to  let  him  read  it  himself,  to 
which  he  replied,  that  it  would  be  time  enough  to  read  the 
warrant  when  they  got  to  the  magistrate's  office.  They 
then  went  up  to  the  office,  when  the  constable  handed 
Wiggins  a  piece  of  paper,  who  asked  Bailey  his  name  and 
how  he  spelt  it :  the  latter  told  him  ;  he  then  wrote  some- 
thing on  the  paper  and  handed  it  back  to  the  constable, 
who  told  Bailey  he  could  then  see  the  warrant  if  he  de- 
sired to  look  at  it.  The  witness  was  then  asked  the  ques- 
tion, what  Wiggins,  the  magistrate,  said  in  the  office  after 
the  investigation  was  closed  ? 

Mr.  Bates,  for  the  defendant,  objected  to  the  admissi- 
bility of  the  question.  This  is  an  action  of  trespass  for 
false  imprisonment,  not  an  action  on  the  case  for  a  mali- 
cious prosecution  without  probable  cause.  What  the  ma- 
gistrate may  have  said  is  therefore  immaterial  and  irrele- 
vant, even  if  the  object  be  to  prove  that  he  was  actuated 
by  malice,  provided  he  did  not  exceed  his  jurisdiction. 

Rogers,  for  plaintiff":  I  intend  to  show  that  the  plaintiff' 
did  exceed  his  jurisdiction,  and  that  it  appears  from  the 
record  that  nothing  more  than  an  act  of  trespass  was  al- 
leged before  him  ;  that  no  criminal  offence  whatever  was 
contained  or  alleged  in  the  affidavit  on  which  his  warrant 
was  issued,  and  that  it  was  consequently  issued  without 
any  authority  of  law  for  it.     I  shall  also  be  able  to  prove 


302  SUPERIOR  COURT. 

that  the  defendant  said  that  thej  intended  to  keep  the 
plaintiff  in  prison  until  another  party,  they  were  more 
anxious  to  get  hold  of,  appeared,  as  he  would  have  to  do, 
for  him. 

By  the  Court:  If  the  object  is  to  prove  malice  on  the 
part  of  the  magistrate,  and  that  he  acted  without  probable 
cause,  the  testimony  of  the  witness  is  irrelevant  and  inad- 
missible; because  it  is  immaterial  in  the  present  action, 
which  is  in  trespass  for  false  imprisonment,  whether  it 
was  so  or  not,  provided  he  did  not  exceed  his  jurisdiction, 
which  is  a  question  depending  upon  other  and  different 
evidence.  For  if  he  has  not  exceeded  his  jurisdiction,  he 
cannot  be  liable  in  the  present  form  of  action  to  the  plain- 
tiff. What  is  probable  cause  when  supported  by  oath  or 
affirmation,  is  a  question  for  the  consideration  and  decision 
of  the  magistrate,  and  however  erroneously  or  maliciously 
he  may  act  in  determining  it,  he  cannot  be  liable  for  it  in 
this"  form  of  action. 

Mr.  Rogers  next  offered  in  evidence  the  depositions  of 
witnesses,  taken  on  commission  out  of  the  State,  on  behalf 
of  the  plaintiff. 

Mr.  Bates  objected  to  their  admissibility,  first,  on  the 
ground  that  it  did  not  appear  that  they  were  taken  by 
the  commissioner.  The  caption  of  the  depositions  stated 
that  they  were  taken  before  the  commissioner  at  his  office, 
with  the  usual  jurat,  "  sworn  and  subscribed  before  me, " 
&c,  at  the  close  of  each  deposition.  This  was  not  sufficient. 
Porter  v.  Beltzhoover,  2  Harr.  484.  Secondly,  on  the  ground 
that  the  deposition  of  the  first  witness  related  to  declara- 
tions of  the  defendant  similar  to  those  which  had  already 
been  ruled  out,  as  inadmissible  in  this  action,  by  the  Court. 

Mr.  Rogers  contended  that  the  commission  had  been 
properly  executed  and  was  sufficiently  certified  to  entitle 
the  depositions  to  be  read  in  evidence.     As  to  the  second 


BAILEY  v.  WIGGINS.  303 

objection,  he  argued  that  as  the  Legislature  had  recently 
abolished  the  common  law  distinction  between  an  action 
of  trespass  and  an  action  on  the  case  [Rev.  Code,  379),  there 
was  now  no  difference  between  them,  and  it  was  therefore 
competent  for  him  in  this  action  to  show  that  the  defen- 
dant had  acted  without  probable  cause,  and  had  been  actu- 
ated by  malice  in  proceeding  criminally  in  the  matter 
against  the  plaintiff. 

By  the  Court:  As  to  the  first  objection,  we  think  it  suf- 
ficiently appears  from  the  caption  and  the  jurat,  that  the 
depositions  were  taken  by  the  commissioner.  They  were 
taken  before  him  at  his  office,  and  were  sworn  and  subscribed 
before  him,  as  appears  upon  their  face,  and  the  presumption 
under  such  circumstances  would  be  that  they  were  taken 
by  him.  In  regard  to  the  other  objection,  so  much  of  the 
depositions  as  related  to  declarations  of  the  defendant, 
similar  to  those  which  had  before  been  excluded,  could  not 
be  read  in  evidence,  for  the  reasons  already  stated.  The 
statutory  provision  referred  to  by  the  counsel  for  the 
plaintiff,  abolishing  the  distinction  between  case  and  tres- 
pass, does  not  and  was  not  intended  to  have  any  such  ef- 
fect as  to  render  such  evidence  admissible  in  the  present 
form  of  action.  It  was  never  intended  to  confound  all  the 
rules  of  pleadings  and  evidence,  heretofore  respectively 
applicable  to  these  two  actions,-  and  to  blend  and  convert 
them  substantially  into  one  and  the  same  form  of  action. 
It  was  only  intended  to  meet  those  cases,  which  sometimes 
arise,  in  which  the  question,  whether  the  wrong  or  injury 
complained  of,  was  immediate,  or  consequential  only, 
which  is  a  question  often  nice  and  refined  in  its  nature,  and 
not  unfrcquently  difficult  to  be  determined.  That  is  the 
leading  and  characteristic  distinction  between  trespass  and 
case  at  common  law,  and  that  is  the  distinction,  and  the 
only  distinction  between  them,  which  the  recent  statute, 
as  we  understand  it,  was  designed  to  alter  and  abolish. 

The  depositions  were  then  read  in  evidence,  which  proved 
that  the  horse  was  taken  without  any  violence  from  a  ser- 


304  SUPERIOR  COTJKT. 

vant  of  the  complainant,  by  the  plaintiff  for  another  person, 
residing  in  Pennsylvania,  under  a  claim  of  property. 

Mr.  Bates,  on  the  plaintiff's  closing  his  evidence,  moved 
a  nonsuit.  This  whole  proceeding,  as  appears  from  the 
evidence  now  before  the  Court,  was  an  exercise  of  judicial 
authority  on  the  part  of  the  defendant  within  his  jurisdic- 
tion, and  however  erroneous  may  have  been  his  decision, 
if  there  was  indeed  any  error  in  it,  he  is  wholly  irrespon- 
sible for  it  in  any  private  action.  The  case  is  simply  this : 
the  defendant,  being  a  justice  of  the  peace  for  this  county, 
a  sworn  complaint  is  made  before  him  that  an  offence  has 
been  committed  in  the  county,  on  which  he  issues  a  war- 
rant for  the  arrest  of  the  alleged  offender,  and  on  his  being 
brought  before  him,  and  after  hearing  the  sworn  witnesses, 
adjudges  that  there  is  probable  cause  for  holding  the  ac- 
cused to  bail  for  his  appearance  at  Court  to  answer  the 
charge,  and  for  want  of  bail  commits  him  to  prison.  The 
defendant  as  such  magistrate  was  bound  by  his  official  ob- 
ligation to  decide  that  question  of  probable  cause,  and  if 
he  had  refused  to  do  so,  he  would  have  been  himself  crimi- 
nally liable  for  a  breach  of  his  official  duty.  2  Burr,  735. 
But  it  may  be  contended  on  the  other  side,  that  the  fact 
charged  by  the  sworn  complaint  on  which  he  acted,  as  ap- 
pears from  the  record,  did  not  amount  to  a  criminal  offence, 
and  therefore  he  acted  without  probable  cause  and  without 
authority  of  law  uuder  the  Constitution  of  the  State.  But 
the  fallacy  of  this  assumption,  if  it  were  true,  consists  in 
supposing  that  the  matter  he  is  to  decide,  is  what  gives 
jurisdiction.  The  question  of  probable  cause  is  a  question 
which  he  is  bound  to  decide,  as  I  have  before  stated,  and 
when  he  has  decided  that  there  is  probable  cause,  however 
erroneous  may  be  that  decision,  then  he  has  jurisdiction, 
although  it  may  turn  out  afterwards,  on  a  further  and  fuller 
investigation  before  another  tribunal,  that  there  was  in 
truth  no  probable  cause  for  the  accusation  or  proceeding 
before  him.  10  Eng.  C.  L.  Jt.  137;  12  Pick.  571.  A  judge, 
or  justice  of  the  peace,  who  has  not  exceeded  his  jurisdic- 


BAILEY  v.  WIGGINS.  305 

tion,  is  not  liable  in  any  civil  action,  however  erroneous 
may  be  his  decision  or  malicious  his  motives.  2  Saund. 
PL  and  Ev.  613;  5  Johns.  Rep.  282.  In  every  instance 
where  an  officer  is  required  to  exercise  judgment  in  the 
discharge  of  his  office,  and  he  exercises  that  judgment,  he 
is  exempt  from  liability  if  he  errs  in  that  judgment.  2  Ld. 
Raym.  941 ;  1  Sulk.  395;  1  East,  561 ;  1  Caines  Rep.  92;  11 
Wend.  91 ;  3  Howard,  97.  Justices  of  the  peace  exercising 
such  judgment  in  matters  of  criminal  information,  are  ex- 
empt from  liability  for  error  in  such  judgment.  2  Burr. 
735 ;  19  Eng.  C.  L.  R.  11 ;  21  Wend.  552. 

In  the  present  case,  which  is  certainly  much  clearer  than 
the  cases  just  cited,  the  facts  charged  in  the  sworn  com- 
plaint, as  appears  from  the  record  of  the  justice,  may  or 
may  not  amount  to  the  crime  of  robbery;  but  whether 
they  did  or  not,  was  the  very  question  which  the  justice 
was  to  decide  in  the  exercise  of  his  judgment  in  regard  to 
the  matter,  and  this  gave  him  jurisdiction  ;  and  if  he  erred 
in  that  judgment,  he  is  exempt  from  all  liability  on  ac- 
count of  it. 

Mr.  Rogers.  I  dispute  the  position  assumed,  and  the 
principle  of  law  asserted,  by  the  counsel  for  the  defendant. 
Such  is  not  the  law.  A  contrary  doctrine  is  ruled  by  Lord 
Mansfield  in  the  case  of  Wall  v.  McNamara,  cited  in  John- 
stone v.  Sutton,  1  T.  R.  536 ;  21  Eng.  C.  L.  R.  20. 

The  complaint  in  this  case  before  the  defendant,  as  it 
appears  from  the  record,  does,  not  afford  the  slightest 
ground  for  supposing  that  any  criminal  offence  had  been 
committed  by  the  parties  complained  against  to  him,  and 
it  is  impossible  that  the  defendant  could  have  fairly  and 
impartially  considered  that  there  was  any  probable  cause 
whatever  for  holding  that  such  an  offence  as  robbery,  or 
any  other  criminal  offence,  had  been  committed. 

By  the  Court.-  The  motion  for  a  nonsuit  must  be  granted. 
Looking  to  the  record  put  in  evidence  in  this  case,  and  the 
proof  which  it  supplies  of  the  complaint  made  on  oath, 


306  SUPERIOR  COURT. 

upon  which  the  justice  acted,  no  one  can  say  that  it  is  clear 
that  there  was  no  probable  cause  for  believing  that  no 
criminal  offence  had  been  committed  by  the  party  com- 
plained against ;  and  the  very  question  presented,  whether 
there  was  probable  eause  for  such  a  belief,  growing  out  of 
a  complaint  on  oath  or  affirmation,  as  the  Constitution  re- 
quires, gives  the  justice  jurisdiction,  and  constitutes  the 
preliminary  question  or  inquiry  Lying  at  the  very  threshold 
of  his  jurisdiction  ;  which  he  must  consider,  and  which  no 
one  but  he  can  determine  when  such  a  complaint  is  pre- 
sented. Whatever,  then,  may  be  his  decision  on  such  a 
question,  when  it  arises  on  a  complaint  made  before  him 
in  this  manner,  is  a  decision  clearly  within  his  jurisdic- 
tion ;  and,  whether  right  or  wrong,  he  cannot  be  liable  in 
a  civil  action  to  any  one  for  it,  because  he  is  then  acting 
in  his  official  capacity  as  a  judicial  officer,  and  not  as  a  man 
upon  his  private  responsibility ;  and,  if  he  could  be  sued 
for  it,  it  ought  to  be  as  an  officer,  and  not  as  an  individual. 
But  to  permit  this  would  be  to  subvert  the  administration 
of  justice,  and  would  expose  her  tribunals  to  be  invaded 
with  civil  actions  against  her  judges  by  any  one  who  might 
consider  himself  aggrieved  by  their  decisions,  notwith- 
standing he  could  not  complain  of  any  excess  of  authority 
or  jurisdiction  on  their  "part.  This  would  subject  even  the 
rightful  administration  of  the  judicial  functions  to  the 
danger  of  their  own  destruction  ;  for  who  would  consent 
to  hold  a  judicial  office  if  he  was  to  be  liable  in  a  civil 
action  to  the  party  aggrieved  for  every  error  of  judgment 
he  might  commit  in  the  lawful  exercise  of  the  authority 
and  jurisdiction  conferred  and  imposed  upon  him?  Not 
many,  we  apprehend,  would  be  willing  to  incur  such  a 
hazard  and  responsibility. 

The  cases  cited  in  behalf  of  the  defendant,  and  particu- 
larly the  cases  from  5  Johns.  Rep.  282,  19  Eng.  (J.  L.  R. 
11,  and  21  Wend.  552,  which  are  much  stronger  than  the 
present  case,  clearly  establish  the  principle  that,  where  the 
committing  magistrate  has  not  exceeded  his  jurisdiction, 
he  cannot  be  liable  in  any  civil  action,  however  erroneous 


BAILEY  v.  WIGGINS.  307 

may  have  been  his  decision,  or  even  malicious  may  have 
been  his  motives.  He  may  be  impeached,  or  proceeded 
against  in  another  form,  and  may  be  removed  from  office ; 
but,  without  exceeding  liis  official  authority  or  jurisdiction, 
no  civil  action  will  lie  against  him. 

Daniel  Rogers,  for  plaintiff. 

D.  M.  Bates,  for  defendant. 


SUPERIOR    COURT. 

SPRING    SESSIONS. 
18  5  7. 


Alfred  Elzey  v.  Elizabeth  Elzey, 

Imbecility  of  mind  is  not  a  sufficient  ground  of  divorce,  unless  it  amounts 
to  idiocy  or  insanity.  Nor  will  intoxication  at  the  time  of  the  mar- 
riage, accompanied  with  circumstances  of  fraud,  combination,  or  cir- 
cumvention on  the  part  of  the  father  and  friends  of  the  wife,  to  induce 
the  petitioner  to  marry  his  daughter,  give  the  Court  jurisdiction  to 
decree  a  divorce,  unless  the  petitioner  was  insane,  within  the  meaning 
of  the  act. 

This  was  a  petition  by  Alfred  Elzey  to  be  divorced  from 
the  bonds  of  matrimony  with  his  wife,  Elizabeth  Elzey. 
The  petition  stated  that  the  parties  were  married  in  the 
month  of  October,  1855,  at  the  house  of  Elihu  Hasting, 
the  father  of  the  respondent;  that  the  petitioner  was  in- 
sane at  the  time,  and  utterly  incapable  of  making  or  en- 
tering into  a  contract  of  marriage  ;  and  that  the  respondent 
was  a  woman  of  bad  fame  and  character,  and  had  given 
birth  to  two  illegitimate  children  before  the  marriage. 
That  the  petitioner  had  never  seen  her  but  once  before 
their  marriage,  and  that  only  a  few  days  previous  to  it, 
when  he  was  carried  in  a  state  of  intoxication  to  the  house 
where  she  resided  by  the  friends  of  the  respondent ;  and 
that,  in  the  afternoon  preceding  the  evening  df  their  mar- 
riage, he  was  made  drunk  by  certain  friends  "of  the  re- 
spondent ;  that  her  father  then  took  him  out  to  his  house 


ELZEY  v.  ELZEY.  309 


and  sent  for  a  minister,  a  relative  of  the  family,  to  perform 
the  ceremony,  and  who  came  and  married  them  whilst  the 
petitioner  was  in  that  condition  ;  and  that  her  father  pro- 
cured and  paid  for  the  marriage  license.  The  petition 
further  stated  that  the  father  of  the  petitioner,  now  de- 
ceased, had  devised  a  considerable  estate  to  him,  worth 
twelve  thousand  dollars  or  more,  in  fee  tail ;  and,  well 
knowing  his  incapacity  to  transact  any  business,  or  manage 
his  own  affairs,  as  he  never  could  learn  to  read  or  write, 
had  appointed  a  testamentary  trustee  to  take  charge  of  the 
estate  devised  to  him,  during  his  life ;  and  that  the  only 
motive  of  the  parties  for  inveigling  him  into  the  marriage 
was  sordid  and  mercenary,  and  to  obtain  the  control  of  his 
person  and  property,  or  the  annual  proceeds  of  it ;  that  the 
marriage  was  procured  by  fraud  and  circumvention  and 
without  his  consent,  and  that  he  had  no  affection  for  the 
respondent,  and  believed  she  had  none  for  him;  and  that 
he  had  left  her  the  next  day  after  the  marriage,  and  had 
never  cohabited  and  never  intended  to  live  with  her  again. 
Wherefore  he  prayed,  &c. 

Both  the  evidence  and  the  argument  in  the  case  are  dis- 
closed in  the  following  opinion  of  the  Court,  announced  by 
Houston,  J. : 

In  this  case  the  petitioner  prays  for  an  absolute  divorce 
from  the  respondent,  on  the  ground  that  he  was  insane, 
and  incapable,  from  an  inherent  or  natural  weakness  and 
imbecility  of  mind,  to  contract  a  valid  marriage ;  and  also 
on  the  ground  that  it  was  brought  about  by  the  interested 
efforts  and  fraudulent  procurement  and  circumvention  of 
certain  relatives  and  friends  of  the  wife,  against  his  will 
and  consent.  The  case  presented  in  the  petition  is  cer- 
tainly a  strong  one;  and,  if  it  is  sustained  by  the  proof 
adduced  in  support  of  it,  so  far  at  least  as  to  bring  it  within 
the  limited  and  specially  delegated  jurisdiction  of  this 
Court  in  the  matter  of  divorces,  would  seem,  without  any 
doubt,  to  entitle  the  petitioner  to  the  relief  which  he  seeks. 
And  this  presents,  at  the  outset,  two  questions  for  our 


310  SUPERIOR  COURT. 

consideration  :  first,  to  what  extent  the  evidence  supports 
the  allegations  contained  in  the  petition ;  and,  in  the  next 
place,  whether  this  Court  has  authority,  upon  that  evi- 
dence, under  the  second  and  third  sections  of  chapter 
seventy-five,  Revised  Code,  238,  to  declare  the  marriage  null 
and  void.  The  evidence,  we  believe,  was  substantially  as 
follows : 

On  behalf  of  the  petitioner,  John  Moore,  a  witness  pro- 
duced and  sworn,  stated  that  he  had  known  the  peti- 
tioner thirty  years,  and  during  that  time  had  never  known 
him  to  transact  business  of  any  importance.  lie  always 
resided  with  his  father,  Robert  Elzey,  in  his  lifetime,  and 
he  never  knew  his  father  to  intrust  any  business  to  him 
to  perform.  His  father  was  a  slaveholder,  and  always 
intrusted  his  business  to  his  black  men,  instead  of  his  son 
Alfred,  to  attend  to  matters  for  him.  lie  had  known  the 
petitioner  to  sell  apples  and  fruits  and  nuts  and  a  little 
corn,  but  never  to  superintend  or  transact  business  of  any 
moment.  That  he  was  ver}'  fond  of  liquor,  and  would 
drink  to  excess  whenever  lie  could  get  it,  and  that  he  had 
often  seen  him  intoxicated.  He  was  weak-minded,  and 
witness  had  frequently  heard  him  try  to  count  ten,  but  he 
could  not  do  it.  That  he  saw  him  twice  on  the  day  of  his 
marriage;  once  he  was  in  company  with  Kendal  B.  Ilearn, 
and  the  other  time  with  Elihu  Hasting,  his  wife's  father; 
he  was  intoxicated  on  both  occasions,  but  not  as  drunk  as 
he  had  sometimes  seen  him.  lie  was  in  company  with 
Kendal  13.  Hearn  and  Elihu  Hasting  about  sundown,  at 
the  magistrate's  office  in  Laurel,  when  his  marriage  license 
was  procured,  and  went  out  of  town  with  them. 

Peter  White,  another  witness  produced  and  sworn  on 
behalf  of  the  petitioner,  testified  that  he  was  present  at  the 
marriage,  but  was  not  well  enough  acquainted  with  him 
to  say  whether  he  was  drunk  or  not  at  the  time,  but  he 
thought  he  had  been  drinking.  He  stood  up  of  his  own 
accord  when   the  ceremony  was  performed,  and  when  he 


ELZEY  v.  ELZEY.  311 

was  asked  by  the  minister  in  the  course  of  it,  if  he  would 
take  that  woman  for  his  wife,  he  at  first  hesitated  and  did 
not  answer  the  question,  until  some  one  told  him  to  an- 
swer it.  That  none  of  the  relations  of  the  petitioner  were 
present,  nor  was  Nathaniel  Horsey,  his  trustee,  there. 

Dr.  Stephen  Green,  another  witness  for  the  petitioner, 
stated  that  he  had  known  him  from  his  childhood,  and 
had  been  a  practitioner  of  medicine  in  his  father's  family 
for  forty  years.  He  did  not  think,  however,  that  he  was 
an  idiot,  or  lunatic,  but  considers  him  weak-minded.  That 
he  cannot  tell  how  many  cents  make  a  fi'penny-bit,  and  is 
not  capable  of  transacting  business  of  any  importance,  and 
that  he  had  always  been  in  this  state  of  mind  from  his  in- 
fancy up  to  the  present  time. 

John  M.  Phillips,  another  witness  on  the  same  side, 
stated  that  lie  has  known  the  petitioner  about  twenty 
years,  but  never  knew  his  father  to  intrust  the  transac- 
tion of  any  business  to  him.  He  once  heard  him  asked 
what  he  would  work  for  per  day,  and  his  answer  was, 
thirty-seven  and  a  half  cents ;  he  was  then  asked  if  lie 
would  not  take  seventy-five  cents  a  day;  he  said  he  would 
not,  but  would  take  thirty-seven  and  a  half  cents;  and 
that  he  did  not  know  at  that  time  the  difference  between 
the  two  sums. 

Winder  Hutting,  another  witness  for  the  petitioner  and 
an  uncle  to  the  wife,  testified  that  he  was  present  at  the 
marriage,  and  went  for  the  preacher  to  perform  the  cere- 
mony, by  the  request  of  his  brother,  Elihu  Hasting,  the 
wife's  father;  that  Kendal  B.  Hearn  and  his  wife  and 
daughters  were  present;  that  Alfred,  the  petitioner,  had 
been  drinking,  but  was  not  drunk  ;  that  his  wife  was  about 
twenty-live  yearsold,and  was  the  mother  of  two  illegitimate 
children,  both  of  whom  were  still  living.  That  no  person 
that  night,  or  at  any  other  time  to  his  knowledge,  per- 
suaded the  petitioner  to  marry  her;   on   the  contrary,  he 


312  SUPERIOR  COURT. 

seemed  to  be  anxious  for  the  marriage,  and  requested  the 
witness  to  tell  him  how  to  do,  as  he  had  never  seen  any 
one  married,  and  appeared  to  be  very  much  pleaseM  after 
the  ceremony  was  over;  claimed  relationship  with  his 
wife's  relations,  called  the  witness  "  cousin"  and  her  father 
"  pap,"  and  introduced  the  witness  to  her  as  Mrs.  Elzey. 
That  the  petitioner  lived  about  seven  miles  from  Elihu 
Hasting's,  but  he  had  never  seen  him  there,  or  in  com- 
pany with  his  wife  before  the  marriage,  and  that  he  left 
the  next  day  after  the  marriage  with  his  wife,  but  she  re- 
turned the  following  dav  to  her  father's  without  him,  and 
he  had  been  back  only  twice  since. 

William  Dashiell,  a  witness  on  the  same  side,  states  that 
he  has  known  the  petitioner  twenty  years,  but  had  never 
known  him  to  transact  any  business  for  himself,  or  any 
one  else,  and  that  he  could  not  count  ten. 

William  Ellis,  testified  that  he  had  known  the  petitioner 
thirty-five  or  forty  years,  and  had  never  known  him  to 
transact  any  business.  On  the  farm  his  father  always  put 
his  negroes  ahead,  and  not  him,  to  do  and  attend  to  mat- 
ters in  his  absence.  That  as  the  administrator  of  his  step- 
mother, the  witness  paid  him  a  legacy  which  she  left  him, 
and  he  would  at  any  time  acknowledge  the  receipt  of  it 
before  witnesses,  but  would  never  sign  a  receipt  for  it,  on 
the  contrary,  he  would  get  angry  when  asked  for  a  receipt, 
and  say  that  tine  witness  only  wanted  to  humbug  him,  and 
that  he  cannot  read  or  write. 

Charles  Efzn/,  another  witness,  states  that  he  is  the  uncle 
of  the  petitioner,  and  has  known  him  from  his  infancy, 
but  never  knew  him  to  engage  in  or  perform  any  busi- 
ness of  aijy  account,  or  his  father  to  intrust  any  to  him  to 
do,  or  attend  to.  That  he  cannot  read  or  write,  and  he 
thinks  he  does  not  know  his  letters.  lie  was  sent  to,  and 
well  tried  at  school,  but  could  never  learn.  lie  can  count 
five,  but  not  more;   he  can  count  i'wa  cents,  but  no  more 


ELZEY  v.  ELZEY.  313 


money.     He  is  very  fond  of  intoxicating  liquors,  and  will 
drink  too  much  whenever  he  can  get  it. 

William  G.  Horsey  testifies  that  he  has  known  the  peti- 
tioner twenty-five  or  thirty  years,  and  that  he  will  get 
drunk  whenever  he  can  get  the  liquor.  That  he  saw  him 
about  noon  on  the  day  of  his  marriage,  and  that  he  was 
then  very  drunk ^  but  he  saw  him  again  about  sundown, 
when  he  was  not  as  much  so ;  he  was  then  with  Kendal  B. 
Hearn,  who  is  a  relation  of  his  wife's;  that  they  went  to 
school  together,  and  that  he  could  never  learn. 

Daniel  Hearn  also  testifies  that  he  went  to  school  with 
the  petitioner  to  two  different  teachers,  and  that  he  could 
not  learn  much,  and  that  he  is  very  fond  of  intoxicating 
liquors.  That  he  has  frequently  known  him  to  buy  to- 
bacco and  molasses  at  his  father's  store,  and  pay  for  it. 

Nathaniel  Hearn,  a  witness  for  the  respondent,  states  that 
lie  lias  known  the  petitioner  from  his  childhood;  and  that 
he  has  frequently  driven  his  father's  teams  with  loads  of 
grain  to  town,  and  has  dealt  a  good  deal  at  his  store,  and 
bought  things  for  the  family,  and  for  himself,  usually  in  a 
small  way.  That  he  could  not  count  money  very  well,  but 
he  could  do  it  as  correctly  as  many  others  he  had  known. 
That  his  wife  was  an  industrious  and  economical  woman, 
and  would  make  him  as  good  a  wife  as  lie  can  get  any- 
wliere ;  and  that  he  has  often  said,  in  his  presence,  he  in- 
tended to  get  married. 

William  W.  Dulaney,  another  witness  for  the  respondent, 
testified  that  he  had  known  the  petitioner  twelve  or  fifteen 
years  ;  and  that,  after  his  father's  death,  he  once  asked 
him  to  act  as  his  friend,  or  "  to  stand  at  his  back,"  as  he 
termed  it.  lie  said  his  father  had  made  provision  for  him 
in  his  will,  but  he  did  not  get  a  sufficient  support,  and  he 
wanted  more  money;  that  he  had  counsel,  and  had  been 
advised  to  get  a  next  friend;  and  witness  was  surprised  to 

21 


314  SUPERIOR  COURT. 

hear  him  talk  with  so  much  intelligence  on  such  a  subject, 
for  he  knew  him  to  be  naturally  of  weak  and  imbecile 
mind. 

Kendal  B.  Hearn,  a  witness  for  respondent,  stated  that 
he  knew  the  petitioner  to  visit  his  wife  twice  prior  to  his 
marriage,  and  that  he  never  persuaded,  urged,  or  threatened 
him,  to  induce  him  to  marry  her;  but  he  seemed  to  be  anxi- 
ous to  marry  her,  and  he  believed  he  knew  and  understood 
what  he  was  doing.  That  he  had  been  to  see  her  since  his 
marriage,  and  he  had  heard  him  say  that  he  wished  to  live 
with  her,  and  would  do  so  if  other  people  would  let  him; 
by  which  lie  understood  him  to  refer  to  his  relations.  He 
had  also  heard  him  say  that  he  wanted  to  go  to  house- 
keeping, but  would  never  do  it  anywhere  but  on  his 
father's  home  farm;  and  if  his  uncle  Charley  did  not  give 
it  up  next  Christmas,  he  would  pitch  him  out  of  it.  That 
he  and  his  wife  went  home  with  the  witness  and  his  wife 
the  morning  after  the  marriage,  and  when  they  got  to  his 
house,  the  petitioner  left  his  wife  there  and  went  away,  and 
said  he  would  be  back  the  next  day,  but  he  did  not  come; 
and  that  he  went  with  him  twice  to  see  his  wife  before  the 
marriage,  at  the  request  of  the  petitioner. 

James  Hasting,  another  witness  on  the  same  side,  testifies 
that  the  petitioner  wanted  at  one  time  to  hire  him  to  bring 
his  wife  to  him,  and  said  he  wanted  to  live  with  her,  and 
would  live  with  her,  if  it  were  not  for  his  uncle,  Charley 
Kl/cv.  At  another  time  he  told  the  witness,  that  if  he 
went  to  see  his  wife  he  should  have  no  peace  when  lie 
came  back. 

Samuel  Kinney  also  testified  that  he  heard  him  say,  that 
he  wanted  to  live  with  his  wife,  but  other  people  would 
not  let  him.  The  witness  further  stated,  that  lie  knows  of 
nothing  to  prevent  him  from  going  to  his  wife's  father's 
when  he  chooses;  that  he  is  treated  kindly  by  his  trustee, 
and  troes  better  dressed  than  in  his  father's  lifetime 


ELZEY  v.  ELZEY.  315 

Elisha  Callaway  also  states,  that  he  asked  him  why  lie 
did  not  go  out  and  see  his  wife;  and  he  replied  that 
Charles  Elzej  would  not  let  him.  That  he  was  at  his 
marriage,  and  did  not  think  he  had  been  drinking  much ; 
he  saw  no  influence  exerted  upon  him  in  any  way  to  induce 
him  to  marry  his  wife. 

Winder  Hasting  also  testified,  that  he  met  him  one  day, 
and  asked  him  why  he  did  not  go  and  see  his  wife?  to 
which  he  replied,  that  he  might  as  well  quit  one  time  as 
another,  for  if  they  knew  him  to  go  out  there,  they  would 
beat  him  like  a  dog;  and  again  he  said,  if  they  knew  him 
to  go  out  th^re,  they  would  give  him  particular  h — 11. 

Polly  Perdee  testifies,  that  before  the  petitioner  was  mar- 
ried he  frequently  came  to  see  her,  and  wanted  her  to 
marry  him;  and  behaved  himself  properly,  and  talked 
sensibly  on  the  subject.  This  was  about  five  weeks  before 
he  was  married. 

Rev.  James  Wallace  stated,  that  he  is  an  agent  of  the 
American  Bible  Society,  and  that  he  asked  the  petitioner, 
on  one  occasion  when  he  met  him  on  the  road,  if  he  did 
not  wish  to  buy  a  Bible;  and  he  replied  by  asking  him  if 
he  could  not  give  a  poor  fellow  one;  and  said  he  could  not 
read,  but  he  «could  get  some  one  to  read  it  to  him.  He 
said  he  would  like  to  have  a  Bible.  About  two  weeks 
before  his  marriage  he  again  met  him  in  Laurel,  when  lie 
asked  the  witness  if  he  was  about  home  of  evenings  ;  he 
told  him  he  was,  and  asked  the  reason  of  his  inquiry — if 
he  was  going  to  be  married?  and  his  reply  was,  "Never 
mind  about  that;  he  would  want  him  some  of  these 
evenings." 

Elizabeth  llcarn  stated,  that  she  was  at  the  wedding,  and 
saw  no  influence  used  by  any  one  to  induce  him  to  marry 
his  wife;  that  he  had  not  been  drinking  any  to  hurt  him. 


316  SUPERIOR  COURT. 

Martin  Collins,  a  witness,  in  reply  for  the  petitioner,  states 
that  he  is  acquainted  with  him  and  his  uncle,  Charles  Elzey, 
and  resides  about  a  quarter  of  a  mile  from  the  latter,  and 
knows  that  Alfred  is  allowed  by  his  uncle  to  go  when  and 
where  he  pleases,  and  that  he  exercises  no  severe  influence 
or  control  over  him,  and  that  he  is  treated  kindly  by  his 
uncle  and  his  family;  and  that  on  the  day  the  marriage 
license  was  procured,  he  heard  Kendal  13.  Hearn  say  to 
Alfred,  opposite  the  magistrate's  office,  to  stop,  he  wanted 
to  get  a  piece  of  paper  for  him. 

William  L.  James,  a  witness  on  the  same  side,  states  that 
he  saw  the  petitioner  the  day  he  was  married,  as  he  came 
into  Laurel,  and  as  he  went  out  again.  He  came  in  with 
Elihu  Hasting,  and  went  out  with  him  and  Kendal  B. 
Hearn,  and  that  he  was  about  half  drunk  when  he  left 
town  about  sundown. 

Leonard  Hasting,  the  clergyman  who  married  the  parties, 
testified  that  he  married  them  in  October,  1855,  and  that 
he  is  a  second  cousin  to  Elihu  Hasting;  and  that  Winder 
Hasting,  the  brother  of  Elihu,  came  after  him  to  marry 
them ;  that  he  was  never  asked  by  the  petitioner  to  marry 
him,  and  that  Kendal  B.  Hearn  paid  him  the  fee  for  marry- 
ing them.  That  when  in  the  act  of  marrying  them,  he 
asked  Alfred  the  usual  question — if  he  would  take  that 
woman  for  his  wife? — he  hesitated,  and  did  not  answer, 
until  Kendal  B.  Hearn  spoke  up,  and  told  him  to  say,  "I 
will;"  which  he  did.  That  he  did  say,  after  he  left,  that 
if  he  had  known  before  he  went  who  they  were  that  were 
going  to  be  married,  he  believed  he  would  not  have  gone. 
On  cross-examination,  the  witness  stated  that  he  saw  no 
influence  exerted  upon  the  petitioner  to  induce  him  to 
enter  into  the  marriage,  by  any  one;  but  he  acted  volun- 
tarily and  of  his  own  accord  in  the  matter,  and  appeared 
cheerful,  like  anybody  else  about  to  be  married.  After 
the  ceremony  was  over,  lie  sat  down  and  talked  with  his 
wife,  and  he  thought  his  hesitation  in  answering  the  ques- 


ELZEY  v.  ELZEY.  317 

tion,  in  the  ceremony  before  mentioned  b}r  him,  was  owing 
to  the  fact  that  he  did  not  know  what  it  meant,  and  how 
he  should  answer  it.  That  his  reason  for  saying,  after  he 
left,  that  if  he  had  known  who  were  to  be  married,  he  be- 
lieved he  would  not  have  gone,  was  what  he  had  learned  in 
regard  to  the  petitioner's  being  weak  and  childish;  but  he 
did  not  know  him  before  that  time,  although  he  had  before 
heard  of  him. 

William  M.  Phillips  stated  that  he  once  went  to  school 
with  the  petitioner,  a  short  time,  when  he  was  nineteen  or 
twenty  years  of  age,  and  that  he  could  not  learn  the  (alpha- 
bet, and  is  now  about  forty  years  old.  Has  known  him  to 
buy  tobacco,  but  never  heard  him  ask  the  price  of  it,  or 
anything  else  he  got;  he  could  not  count  the  change  if  any 
was  given  him. 

Edward  W.  Moore,  the  officer  who  issued  the  marriage 
license,  states  that  Kendal  B.  Hearn  called  upon  him  for 
it,  and  that  the  petitioner  was  not  then  with  him,  but  was 
present  when  it  was  issued.  He  said  nothing  himself, 
however,  about  wanting  the  license.  Hearn  entered  as 
surety  in  the  bond,  and  Elihu  Hasting,  his  wife's  father, 
paid  the  fee  for  it;  and  if  the  petitioner  was  under  the  in- 
fluence of  liquor  at  the  time  he  did  not  perceive  it.  That 
he  saw  no  influence  exerted  upon  him  in  any  way  to  in- 
duce him  to  do  what  he  did.  As  he  was  about  leaving  the 
office,  witness  remarked  to  him  that  he  supposed  he  was 
going  to  be  married,  to  which  he  answered,  he  guessed 
so;  and  that  he  evinced  no  hesitation  or  reluctance  in  re- 
gard to  what  was  going  on  in  the  office  at  the  time. 

This  closes  the  evidence,  so  far  as  it  is  material  to  state 
it,  and  which  I  have  thus  been  both  tedious  and  particular 
in  recapitulating  from  my  notes,  taken  on  the  hearing,  be- 
cause I  think  it  affords  a  more  accurate  conception  (A'  the 
mental  weakness,  character  and  condition  of  the  petitioner 
than  any  general  description  which  could  be  given  of  him. 


318  SUPERIOR  COURT. 

The  decided  weakness  and  imbecility  of  his  intellect  by 
nature  cannot  be  doubted,  after  reading  the  testimony; 
but  whether  it  was  such  a  degree  of  mental  infirmity  as 
would  constitute  him  an  insane  party,  within  the  meaning 
and  intention  of  the  second  section  of  the  chapter  in  the 
Revised  Code  before  referred  to,  is  not  a  question  so  easily 
and  readily  answered  in  the  affirmative.  The  words  of 
that  section  are :  "  The  said  court  shall  have  sole  cogni- 
zance to  decree  marriages  null  and  void  which  are  pro- 
hibited by  law  for  consanguinity,  or  affinity,  or  between  a 
white  person  and  a  negro  or  mulatto,  or  where  either  of 
the  parties  had,  at  the  time  of  the  marriage,  another  hus- 
band or  wife  living;  or  where  either  of  the  parties  was  at 
that  time  insane."  This  last  clause  is  concise,  but  it  con- 
tains all  that  is  to  be  found  in  the  law  which  can  possibly 
have  any  relation  to  this  case.  Was,  then,  the  petitioner 
insane  at  the  time  of  the  marriage,  within  the  meaning  and 
contemplation  of  this  clause  in  the  act?  It  is  true,  as  has 
been  said,  that  the  solution  of  this  question  does  not  de- 
pend so  much  on  the  ordinary  or  popular  signification  of 
the  word  as  on  its  legal  sense,  the  sense  in  which  it  is 
employed  in  the  books,  and  that  Lord  Coke  classifies  both 
idiots  and  lunatics  as  insane  persons;  the  former,  as  he 
defines  them,  being  so  from  birth,  and  the  latter  from  ac- 
cidental or  supervening  causes,  usually  attended  with  lucid 
intervals ;  in  which  respect  in  particular  they  differ  from 
the  former.  But  according  to  his  quaint  and  familiar  de- 
finition of  an  idiot,  lie  ranks  him,  we  think,  much  beneath 
the  grade  of  the  petitioner's  stolidity  and  imbecility,  feeble 
as  his  intellectual  capacity  has  been  proved  to  be ;  for  he 
defines  an  idiot  to  be  "  one  who  does  not  know  his  own 
father  or  mother,  brothers  and  sisters,  cannot  tell  the  days 
of  the  week,  nor  count  ten."  But  the  petitioner  knew  his 
father  and  uncle,  and  his  trustee,  and  even  the  nature  of 
his  office,  and  quite  surprised  one  of  the  witnesses  by  the 
degree  of  shrewdness  and  intelligence  which  he  exhibited 
on  one  occasion,  when  speaking  to  him  on  the  subject  of 
the  legal  relation  which  he  bore  to  him,  although,  as  others 


ELZEY  v.  ELZEY.  319 


have  proved,  he  could  never  learn  to  count  more  than  five. 
Independent  of  this  distinction,  however,  we  do  not  con- 
sider, upon  a  review  of  the  whole  evidence,  and  upon  the 
authority  of  the  adjudged  cases  in  the  ecclesiastical  courts 
of  England  on  this  question,  where  the  validity  of  mar- 
riages has  been  frequently  assailed  on  this  ground,  that 
the  petitioner  was  incompetent  to  contract  matrimony,  or 
that  his  mental  weakness  or  deficiency  of  understanding 
amounted  to  that  degree  of  incapacity  or  unsoundness  of 
mind  contemplated  by  the  act,  which  would  absolutely  dis- 
qualify him  from  entering  into  a  valid  contract  of  that  na- 
ture. It  would  be  dangerous,  perhaps,  as  well  as  difficult,  to 
prescribe  the  precise  degree  of  mental  vigor,  soundness  and 
capacity  essential  to  the  validity  of  such  an  engagement; 
which,  after  all,  in  many  cases  depends  more  on  sentiments 
of  mutual  esteem,  attachment,  and  affection,  which  the 
weakest  may  feel  as  well  as  the  strongest  intellects,  than 
on  the  exercise  of  a  clear,  unclouded  reason,  or  sound 
judgment,  or  intelligent  discernment  and  discrimination, 
and  in  which  it  differs  in  a  very  important  respect  from  all 
other  civil  contracts. 

On  the  other  and  additional  ground,  alleged  in  the  peti- 
tion for  the  divorce,  that  is  to  say,  that  he  was  intoxicated 
at  the  time  the  ceremony  was  performed,  and  that  lie  was 
made  so  by  those  who  had  an  interest  and  an  object,  In- 
discreditable  arts,  to  bring  about  what  we  must  certainly 
call  a  discreditable  match  for  all  concerned  in  it,  it  is 
scarcely  necessary  to  remark,  tluit  although  drunkenness 
is  sometimes  called  voluntary  madness,  it  is  not  the  mad- 
ness referred  to  in  this  section  under  the  denomination  of 
insanity,  even  if  we  were  satisfied  from  the  evidence,  which 
we  are  not,  that  the  petitioner  was  too  much  intoxicated  at 
the  time  to  comprehend  and  understand  the  nature  and 
obligation  of  the  engagement  and  relation  he  was  entering 
into.  Neither  is  it  competent  for  this  tribunal  to  take  into 
consideration,  in  connection  with  the  two  grounds  above 
adverted  to,  the  alleged  fraudulent  design  and  circumven- 
tion  by  which  the  petitioner  was  inveigled  into  the  mar- 


320  SUPERIOR  COURT. 

riage,  on  the  part  of  those  whom  he  has  implicated  in  the 
transaction.  The  proof  on  this  point  is  not  conclusive, 
although  there  is  enough,  in  the  facts  detailed  in  regard  to 
the  procurement  of  the  marriage  license  and  the  condition 
in  which  he  was  taken  by  Hearn  and  the  father  to  his 
house,  for  the  purpose  of  marrying  his  daughter,  to  show 
an  indecent  zeal  on  their  part  to  accomplish  their  object, 
and  to  induce  a  strong  suspicion  of  the  fraudulent  design 
and  combination  alleged  against  them  in  the  matter.  But 
if  we  are  forbidden,  under  all  the  facts  proved,  to  pro- 
nounce the  petitioner  insane,  in  the  language  of  the  statute, 
then  no  circumstances  of  fraud  or  aggravation,  trick,  com- 
bination, or  circumvention,  however  gross,  indecent  or  dis- 
reputable may  have  been  the  means  adopted  to  bring  about 
the  marriage,  can  give  us  jurisdiction  to  divorce  the  par- 
ties. As  we  have  before  observed,  our  jurisdiction  in  the 
premises  is  a  special  and  limited  one,  and  being  confined 
to  this  single  inquiry,  we  cannot  enlarge  it  by  reason  of 
any  hardship,  injustice,  fraud,  imposition,  or  deception 
which  may  have  been  practised  upon  the  party,  so  as  to 
afford  him  the  relief  which  he  seeks,  unless  we  could  say 
he  was  insane ;  and  then  these  circumstances  would  be 
entirely  unnecessary.  We  are  therefore  constrained  to 
refuse  the  application  and  to  dismiss  the  petition. 

Moore,  McFee,  and  C.  S.  Layton,  for  the  petitioner. 

W.  Saulsbury,  for  the  respondent. 


Doe  d.  Henry  F.  Hall  and  Wife  et  al.  r.  George  Tunnell, 
Tenant  in  possession. 

A  mortgage  executed  and  acknowledged  in  180S,  and  recorded,  but  With- 
out any  entry  as  to  the  time  when  it  wati  recorded,  held  to  have  been 
recorded  within  a  year  after  its  execution,  as  it  appeared  from  the  record 


DOE  d.  HALL  &  WIFE  et  al.  v.  TUNNELL.       321 

to  have  been  recorded  at  an  early  day,  and  the  law  then  required  no 
such  entry  to  be  made. 

As  between  the  mortgagor  and  mortgagee,  a  mortgage  is  only  a  security 
for  the  payment  of  the  debt,  and  does  not  absolutely  convey  the  legal 
title  in  the  premises  to  the  mortgagee,  so  long  as  the  mortgagor  con- 
tinues in  possession  of  them;  but  it  is  a  lien  of  so  high  a  nature,  that  it 
is  not  divested  by  a  sale  of  the  premises  on  a  judgment  subsequently 
obtained  ;  yet  if  the  mortgagee  is  in  possession  after  condition  broken, 
it  is  no  longer  in  the  power  of  the  mortgagor,  or  any  one  claiming  title 
under  him  by  virtue  of  a  sale  on  such  a  judgment,  to  recover  the  posses- 
sion in  ejectment.  The  only  right  which  the  purchaser  acquires  in  such 
a  case,  is  to  redeem  the  premises  by  paying  the  mortgage.  Because 
the  mortgagee  in  that  case  is  the  holder  of  the  legal  title;  but  if  the 
mortgagor  is  in  possession,  the  sale  on  the  judgment  will  convey  the 
legal  title  to  the  purchaser  subject  to  the  mortgage. 

If  the  mortgagor  and  mortgagees  be  living  together  in  possession  of  the 
premises  after  condition  broken,  it  is  not  a  case  of  mixed  possession, 
as  between  tenants  in  common,  in  which  the  law  will  adjudge  the  pos- 
session to  the  mortgagees,  as  the  holders  of  the  legal  title.  In  such  a 
case,  the  possession  must  be  in  one  or  the  other,  and  there  can  be  no 
mixture  of  possession  between  them  in  their  relation  as  mortgagor  and 
mortgagees,  which  would  divest  the  mortgagor's  actual  possession  of 
the  property. 

This  was  an  action  of  ejectment  to  recover  a  house  and 
lot  in  Lewes,  formerly  the  property  of  Isaac  Turner,  against 
whom  Caleb  Rodney  held  two  judgments,  one  recovered 
on  the  27th  of  April,  1809,  and  the  other  at  the  April 
Term,  1835,  on  a  bond  executed  September  loth,  1802,  on 
which  the  premises  were  sold  by  virtue  of  execution  pro- 
cess, as  the  property  of  Isaac  Turner,  and  were  bought  by 
Caleb  Rodney  at  sheriff's  sale  in  1836.  Both  Turner  and 
Rodney  were  dead  before  the  commencement  of  the  action, 
and  the  lessors  of  the  plaintiff  were  the  heirs-at-law  of  the 
latter.  Turner  built  and  owned  the  house  in  question  and 
lived  in  it  up  to  his  death  in  1841.  He  had  but  two  chil- 
dren, Hannah  and  Mary  Turner;  Hannah  married  John 
Milby,  and  after  their  marriage  they  continued  to  reside 
in  the  house  with  Isaac  Turner  and  his  other  daughter, 
Mary,  until  their  death  in  1816,  leaving  children,  who  also 
continued  for  several  years  after  their  death  to  live  with 
their  grandfather  and    his  daughter   Mary  in  the  house. 


322  SUPERIOR  COURT. 

After  the  death  of  Isaac  Turner  in  1841,  Mary  Turner  be- 
came the  sole  tenant  of  the  premises  and  lived  in  them 
until  1849,  when  she  rented  them  to  the  defendant ;  who 
produced  at  the  trial  and  relied  upon  the  record  of  a  mort- 
gage, duly  executed  and  acknowledged  by  Isaac  Turner  to 
John  Milby  and  Hannah  his  wife,  and  Mary  Turner,  for 
the  premises,  on  the  29th  of  January,  1808,  for  $G00,  pay- 
able in  seven  years ;  but  it  did  not  appear  at  what  time 
the  same  had  been  recorded,  whether  within  one  year  from 
the  date  of  the  mortgage,  or  not. 

W.  Saulsbury,  for  the  plaintiff:  The  defence  set  up  under 
this  mortgage  will  not  avail  the  other  party;  because  where 
there  was  no  possession  by  the  mortgagee  of  the  premises 
under  the  mortgage,  nor  interest  paid,  nor  steps  taken  to 
enforce  it  for  a  period  of  nineteen  years,  or  more,  the  jury 
might  presume  that  it  had  been  satisfied.  10  Johns.  381. 
A  mortgagor  in  possession  was  the  actual  owner  of  the 
land,  and  before  foreclosure  it  was  a  mere  security  for  the 
payment  of  money,  and  as  a  proof  of  it,  the  premises  could 
be  sold  on  a  judgment  against  the  mortgagor,  but  not  on 
a  judgment  against  the  mortgagee.  Cooch's  Lessee  v.  Ger- 
ry, 3  llarr.  280.  But  the  instrument  offered  in  evidence 
was  no  mortgage  at  all,  for  it  did  not  appear  from  the  re- 
cord, nor  had  it  otherwise  been  shown,  that  it  was  recorded 
within  one  3-ear  from  its  date,  without  which  it  was  void 
as  against  a  subsequent  purchaser.     1  Del.  Laws,  222. 

E.  D.  Cullen,  for  the  defendant  :  The  cases  cited  did  not 
apply  in  this  instance,  because  in  those  cases  the  mortga- 
gees were  never  in  possession  under  the  mortgage,  which 
was  not  the  case  here;  for  the  evidence  was  that  the  mort- 
gagees in  this  case  were  in  the  continuous  possession  of 
the  house,  from  the  date  of  the  mortgage  and  before  it, 
until  the  death  of  the  mortgagor  in  1841,  and  that  Mary 
Turner,  one  of  them,  had  been  in  possession  ever  since, 
either  in  person,  or  by  her  tenant,  the  defendant.  For  a 
mortgagee  in  possession  after  condition  broken  could  not 


DOE  d.  HALL  &  WIFE  et  al.  v.  TUNNELL.       323 

be  dispossessed,  and  his  title  was  complete  and  absolute  at 
law.  4  Jac.  Law  Diet  320;  12  Mass.  39;  6  Mass.  50.  If 
a  mortgagee  has  been  in  possession  twenty  years,  a  court 
of  chancery,  in  analogy  to  the  legal  principle  which  bars 
an  action  of  ejectment,  will  not  permit  the  mortgagor  to 
redeem  ;  and  where  the  interest  on  the  mortgage  has  not 
been  paid,  the  mortgagee  becomes  entitled  to  the  land, 
and  may  maintain  ejectment  for  it.  2  Cruise,  78.  The 
mortgagor  after  forfeiture  has  no  right  or  title  to  the  pre- 
mises, but  the  right  to  redeem  by  the  payment  of  the  debt ; 
and  a  purchaser  with  notice  has  no  other  right.  9  Wheat- 
248  ;  Adams  on  Ejectm.  60.  Isaac  Turner  and  the  mort- 
gagees, all  being  in  possession  as  tenants  in  common,  until 
the  death  of  himself  and  his  wife,  and  afterwards,  Mary 
Turner,  the  remaining  mortgagee,  continuing  in  possession 
until  the  present  time,  the  possession  of  one  was  the  pos- 
session of  all ;  and  even  if  it  should  be  contended  that 
Isaac  Turner,  the  mortgagor,  was  also  in  possession  with 
them,  up  to  the  time  of  his  decease,  then  it  was  the  case 
of  a  mixed  possession  between  them,  in  which  the  law 
would  adjudge  the  possession  to  those  who  had  the  legal 
right,  that  is  to  say,  to  the  mortgagees.  Mary  Turner 
having  been  in  the  sole  possession  of  the  property  since 
the  death  of  her  father,  as  mortgagee  flnder  the  mortgage, 
she  is  entitled  to  retain  it  against  the  mortgagor,  and  all 
persons  claiming  under  him,  unless  it  could  be  shown  that 
the  money  secured  by  the  mortgage  had  been  paid.  Caleb 
Rodney  was  but  the  assignee  of  Isaac  Turner,  the  mort- 
gagor, and  after  condition  broken  could  not  maintain 
ejectment  against  the  mortgagee.  Nor  would  the  pre- 
sumption of  payment  of  the  money  by  the  mortgagor  arise 
from  lapse  of  time,  if  there  was  anything  in  the  circum- 
stances of  the  mortgagor  to  rebut  the  presumption,  as  had 
been  abundantly  proved  in  the  present  case.  The  plain- 
tiff, therefore,  in  no  aspect  of  the;  mutter,  was  entitled  to 
recover. 

W.  Saulsbury :  Mary  Turner  was  not  a  party  to  the  case, 


324  SUPERIOR  COURT. 

and  although  she  might  have  been,  she  was  not  made  a 
party ;  he  therefore  submitted  that  it  was  not  competent 
for  the  present  defendant  to  defeat  the  action  by  showing 
an  outstanding  mortgage  in  her  and  other  persons,  because 
such  a  mortgage  would  be  presumed,  after  the  lapse  of  so 
many  years,  to  be  paid  and  satisfied.  10  Johns.  381.  The 
Court  could  not  infer,  nor  direct  the  jury  to  presume,  that 
this  mortgage  was  recorded  within  the  time  prescribed  by 
the  statute  then  in  force  on  the  subject,  because  the  re- 
quirement was  express  and  positive,  and  it  must  be  affirm- 
atively shown  by  the  party  claiming  under  it. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  This  is  an 
action  of  ejectment  brought  by  the  heirs  of  Caleb  Rodney 
to  recover  a  house  and  lot  in  Lewes,  and  both  parties  claim 
title  under  Isaac  Turner;  the  plaintiff,  by  virtue  of  a 
sheriff's  deed  for  the  premises,  sold  to  Rodney  under  a 
judgment  recovered  by  him  against  Turner  in  1835,  and 
the  defendant,  under  a  mortgage  from  the  latter  to  John 
Milby  and  Hannah  his  wife,  and  Mary  Turner,  executed 
and  acknowledged  prior  to  the  judgment,  and  as  far  back 
as  the  year  1808,  and  as  the  tenant  of  Mary  Turner,  of 
whom  he  rents  the  property.  It  appears  from  the  evi- 
dence that  Isaac  Turner  owned  the  house  and  lot,  and  for 
many  years  before  his  death,  in  1841,  occupied  it  with  his 
two  daughters,  one  of  whom  was  married  to  John  Milby, 
the  other  remaining  single,  and  that  they  lived  in  it  prior 
to  1808  and  to  the  date  of  the  mortgage,  the  daughters 
nearly  or  quite  all  their  lives.  How  they  were  in  posses- 
sion, and  especially  during  the  latter  part  of  the  time,  it 
will  be  important  for  the  jury  to  determine  with  reference 
to  the  title  of  the  parties  now  claiming  the  property. 

It  is  admitted  on  both  sides  that  prior  to  the  month  of 
January,  1808,  Turner  owned  the  property  and  was  in  pos- 
session of  it.  On  the  ninth  of  that  month  he  mortgaged 
the  premises  to  John  Milby  and  wife  and  Mary  Turner, 
his  children,  for  $600,  payable  in  seven  years — that  is  to 
say,  in  1815.     The  effect  of  this  mortgage,  if  it  was  re- 


DOE  d.  HALL  &  WIFE  et  al.  v.  TUNNELL.       325 

corded  within  twelve  months  from  its  date,  was  to  create 
a  lien  on  the  property  for  the  amount  of  money  designed 
to  be  secured  by  it,  and  after  it  fell  due  and  was  unpaid, 
to  give  the  mortgagees  a  right  to  foreclose  the  mortgage 
and  sell  the  property  for  the  payment  of  it,  or  to  turn  the 
mortgagor  out  of  possession  by  ejectment,  if  he  was  then 
in  possession.  In  regard  to  the  recording  of  the  mortgage, 
we  have  to  say  to  you  that  the  law  then  in  force  on  the 
subject  allowed  it  to  be  recorded  within  one  year  from  the 
execution  of  it,  but  did  not  require  the  recorder,  as  at  the 
present  time,  to  enter  upon  the  record  the  time  of  record- 
ing it.  But  as  the  mortgage  was  executed  many  years 
ago,  and  appears  from  the  record  to  have  been  recorded  at 
an  early  day,  we  deem  it  the  duty  both  of  the  Court  and 
the  jury,  under  the  circumstances,  to  presume  that  it  was 
recorded  within  the  time  prescribed  by  the  act,  as  a  con- 
trary assumption  would  impute  to  the  recorder  a  breach  of 
his  duty  and  a  violation  of  the  law  in  recording  it  after- 
wards. 

If,  however,  the  children  were  in  possession  of  the  pro- 
perty as  mortgagees  after  the  money  was  due,  they  had  a 
right  to  keep  the  possession  even  as  against  the  father, 
whose  title  was  by  this  breach  of  the  condition  of  his  mort- 
gage turned  into  a  mere  right  of  redemption  on  payment 
of  the  money.  The  possession  therefore  subsequent  to 
1815,  and  particularly  after  1835,  a  period  of  twenty  years 
having  intervened,  is  a  fact  of  material  importance  in  the 
ease;  because  if  Milby  and  his  wife,  and  Mary  Turner,  or 
either  of  them,  were  in  possession  of  the  property  after 
1815,  claiming  under  the  mortgage,  the  money  not  being 
paid,  Isaac  Turner  himself,  if  now  living,  could  not  put 
them  out  by  ejectment,  and,  of  course,  no  one  claiming  his 
title  by  virtue  of  a  sale  on  a  judgment  recovered  subse- 
quent to  the  execution  of  the  mortgage  can  do  it.  If  such 
was  the  case,  all  the  right  which  Caleb  Rodney  acquired 
by  virtue  of  the  sheriff's  sale  on  his  judgment  against  Isaac 
Turner,  the  mortgagor,  was  merely  a  right  to  redeem  the 
property  by  the  payment  of  the  mortgage  debt,  hut  which 


326  SUPERIOE  COURT. 

was  not  sufficient  to  sustain  an  action  of  ejectment  against 
a  mortgagee  in  possession.  But  notwithstanding  the  fact 
that  the  mortgage  was  executed  in  1808,  long  before  the 
recovery  of  the  judgment  by  Caleb  Rodney  against  Isaac 
Turner  for  $208.95,  which  was  on  the  19th  of  October, 
1835,  on  which  the  premises  were  sold  and  bought  by 
Rodney,  in  April,  1836,  and  also  the  fact  that  the  mort- 
gage was  forfeited  by  the  non-payment  of  the  money  long 
before  the  judgment  was  obtained,  if  the  children  of  Tur- 
ner, or  either  of  them,  were  not  in  possession  of  the  pre- 
mises as  mortgagees  under  the  mortgage,  but  the  mort- 
gagor, the  father,  was  still  in  possession  as  the  owner  up  to 
the  time  of  his  death,  in  1841,  then  the  sale  and  convey- 
ance of  the  property  by  the  sheriff,  under  the  judgment  to 
Rodney,  would  pass  the  title  to  him  subject  to  the  mort- 
gage, and  the  plaintiff  would  be  entitled  to  recover  it  in 
the  present  action  of  ejectment. 

A  mortgage,  as  between  the  mortgagor  and  mortgagee, 
so  long  as  the  former  continues  in  possession  of  the  mort- 
gaged premises,  is  merely  a  security  for  the  payment  of 
money,  and  does  not  absolutely  convey  the  legal  title  to 
the  premises,  but  it  is  a  lien  on  the  property  of  so  high  a 
nature  that  it  is  not  divested  by  a  sale  on  judgments  sub- 
sequently obtained  against  the  mortgagor;  yet  if  the  mort- 
gagee is  in  possession  under  the  mortgage,  and  the  con- 
dition of  it  be  broken,  it  is  no  longer  in  the  power  of  the 
mortgagor,  nor  of  any  one  claiming  his  title  by  virtue  of  a 
sale  on  such  a  judgment,  to  recover  the  possession  in  eject- 
ment. His  only  right  in  such  a  case,  as  we  have  before 
said,  is  to  redeem  the  premises  by  paying  the  mortgage. 

The  question  of  fact,  therefore,  whether  John  Milby  and 
Hannah  his  wife,  'and  Mary  Turner,  or  either  of  them, 
were  in  possession  of  the  property  before  or  at  the  time 
when  Rodney's  judgment  was  recovered,  holding  it  as 
mortgagees  under  their  mortgage,  is  the  material  point  on 
which  the  case  depends;  because  if  such  was  their  posses- 
sion, they  were  then  the  owners  and  holders  of  the  legal 
title  ;  but  if  otherwise,  then  they  were  the  mere  holders  of 


DOE  d.  HALL  &  WIFE  et  al.  v.  TUNNELL.      327 

a  legal  security,  with  a  lien  on  the  property  through  the 
mortgage  for  the  payment  of  it.  In  the  latter  case,  Mr. 
Rodney's  judgment  would  sell  the  premises  subject  to  the 
mortgage ;  in  the  former,  it  would  merely  sell  the  right  to 
redeem  the  property  on  the  payment  of  it.  And  it  will 
thus  be  seen  that  we  regard  the  case  as  if  Mary  Turner 
were  the  defendant  in  the  action,  since  the  actual  defen- 
dant is  alleged  to  be  her  tenant;  but  whether  he  is  or  not, 
the  plaintiffs  must  recover,  if  at  all,  on  the  strength  of 
their  own  title,  and  the  law  invalidates  that  title  to  recover 
against  any  one,  if  the  actual  legal  title  can  be  shown  to 
be  outstanding  in  a  mortgagee  in  possession  after  condition 
broken. 

As  to  the  point  suggested  in  regard  to  the  possession  in 
this  case  being  a  mixed  possession  of  the  premises  by  the 
mortgagor  and  mortgagees,  as  tenants  in  common,  the 
principle  of  law  as  to  presumptions  does  not  apply  in  such 
a  case  as  this;  because  there  cannot  be  for  this  purpose  a 
mixed  possession  between  such  parties  as  tenants  in  com- 
mon. The  possession  was  either  in  the  mortgagor  or  in 
the  mortgagees,  as  mortgagees ;  they  could  not  both  have 
possession  in  their  opposite  characters,  and  there  could  be 
in  contemplation  of  law  no  mixture  of  possession  as  tenants 
in  common  between  them  in  their  relation  of  mortgagor 
and  mortgagees;  which  would  divest,  in  that  case,  the 
mortgagor's  actual  possession  of  the  property.  And  as  to 
the  relation  of  parent  and  child,  though  the  presumption 
would  be  that  the  child  was  living  with  the  parent  when 
under  his  roof,  the  fact  might  be  otherwise,  by  their  re- 
versing their  mode  of  living.  But  it  is,  after  all,  a  fact  for 
the  jury  to  determine  oil  the  evidence,  as  to  the  condition 
and  position  of  the  parties,  with  reference  to  which  it  was 
not  for  the  Court  to  intimate  any  opinion.  The  Court 
would  therefore  submit  the  question  of  fact  before  stated, 
and  leave  it  to  the  jury  to  say,  from  the  evidence,  whether 
Milby  and  wife,  and  Mary  Turner,  or  either  of  them,  was 
in  possession  of  the  house  and  lot,  as  mortgagees  under  the 
mortgage,  at   the   time  when   Mr.  Rodney  recovered  his 


328  SUPERIOR  COURT. 

judgment,  in  1835,  claiming  and  holding  it  as  such;  if  so, 
then  the  plaintiff  was  not  entitled  to  recover  in  the  action ; 
but  if,  on  the  other  hand,  Isaac  Turner,  the  mortgagor,  was 
in  possession,  notwithstanding  they  were  living  with  him 
as  members  of  his  family,  and  continued  in  possession  till 
his  death,  in  1841,  then  the  plaintiffs  would  be  entitled  to 
their  verdict. 

Verdict  for  the  defendant. 


John  R.  Day  and  Wife  v.  John  P.  Messick,  Administra- 
tor of  Ritty  A.  Messick,  deceased. 

A  husband  is  not  liable,  after  the  death  of  his  wife,  for  debts  contracted 
by  her  before  their  marriage.  Neither  is  he  (liable  as  her  administra- 
tor for  such  debts,  except  to  the  extent  of  the  choses  in  action  due  her 
at  her  death. 

The  facts  in  this  case  were  returned  and  submitted  on  a 
special  report  of  referees  on  a  rule  of  reference,  for  the 
opinion  and  judgment  of  the  Court,  by  the  agreement  of 
the  parties. 

The  report  of  the  referees  was  as  follows :  that  a  certain 
Elizabeth  Waller,  since  deceased,  by  deed  of  bargain  and 
sale,  bearing  date  the  10th  day  of  April,  1838,  conveyed  to 
Henrietta  Waller  and  Sally  Ann  Russell,  a  tract  of  land  in 
fee  simple,  reserving  to  herself  a  life  estate  therein,  and 
that  after  the  death  of  Elizabeth  Waller,  Ritty  Ann  Wal- 
ler went  into  possession  of  the  land,  and  received  the  rents 
and  profits  of  it,  until  the  23d  day  of  September,  1848, 
when  it  was  appraised  in  the  Court  of  Chancery,  and  ac- 
cepted by  her,  on  proceedings  in  partition  instituted  for 
that  purpose,  and  afterwards  married  John  P.  Messick, 
and  died  without  ever  having  accounted  with  or  paid  the 
said  Sally  Ann  Russell  any  part  of  the  rents  and  profits 
of  the  land,  up  to  the  time  of  the  appraisement  and  accept- 


DAY  &  WIFE  v.  MESSICK.  329 

ance  of  it  in  the  Court  of  Chancery,  as  above  mentioned. 
That  letters  of  administration  had  been  duly  granted  on 
the  estate  of  Ritty  Ann  Messick,  late  Ritty  Ann  Waller, 
to  her  husband,  John  P.  Messick,  and  that  Sally  Ann  Rus- 
sell is  now  the  wife  of  John  R.  Day,  and  this  action  was 
instituted  to  recover  her  share  of  the  rents  and  profits  of 
the  land,  up  to  the  period  of  the  appraisement  and  accep- 
tance in  the  Court  of  Chancery,  no  action  before  ever 
having  been  brought  for  that  purpose,  the  right  of  the 
plaintiffs  to  sue  for  the  same  having  been  saved  by  her 
infancy,  in  the  meanwhile,  and  her  marriage  within  three 
years.  That  if,  upon  the  facts  above  stated,  the  Court 
should  be  of  opinion  that  John  P.  Messick,  administrator 
of  Ritty  Ann  Messick,  deceased,  was  liable  to  pay  to  the 
plaintiffs  the  said  Sally  Ann's  share  of  the  said  rents  and 
profits, .then  the  referees  found  him  indebted  to  the  plain- 
tiffs in  the  sum  of  $137.12;  otherwise,  they  reported  no 
cause  of  action. 

Houston,  J.,  announced  the  opinion  of  the  Court:  In  this 
case  judgment  must  be  entered  for  the  defendant  on  the 
special  report  returned  by  the  referees. 

The  law  in  relation  to  husband  and  wife  renders  the  hus- 
band liable  during  coverture  for  all  the  debts  of  the  wife 
contracted  before  their  marriage,  without  any  reference 
to  the  property  or  estate  which  he  may  have  acquired  by 
her;  but  this  liability  exists  and  continues  only  during  the 
lifetime  of  the  wife,  unless  the  nature  of  the  debt  is  changed 
by  the  recovery  of  a  judgment  upon  it  against  the  husband 
during  her  life,  and  if  she  dies  before  this  is  done,  his  lia- 
bility as  her  husband,  which  he  has  now  ceased  to  be,  for 
her  debts  contracted  prior  to  the  marriage,  is  entirely  dis- 
charged, notwithstanding  he  may  have  acquired  by  the 
marriage,  property  in  her  right,  far  beyond  the  amount  of 
her  indebtedness  at  that  time.  For  as  the  law  makes  him 
liable  for  all  her  debts  during  their  coverture,  without  re- 
gard to  her  means  before  the  marriage,  so  the  law,  by  way 
of  equivalent  and  upon  a  principle  of  compensatory  justice, 

22 


330  SUPERIOR  COURT. 

relieves  him  of  that  liability  as  her  husband  on  her  decease, 
without  relation,  as  we  have  before  said,  to  any  fortune, 
however  great,  which  he  may  have  obtained  by  her. 

But  in  this  case  the  action  is  not  against  the  defendant 
as  the  husband,  but  as  the  administrator  of  his  deceased  wife. 
This,  however,  does  not  materially  affect  or  alter  the  prin- 
ciple before  referred  to.  For  although  the  husband,  on  the 
death  of  the  wife,  is  entitled  to  and  may  take  out  letters 
of  administration  on  her  estate,  he  is  not  in  general  liable 
as  such  for  her  debts  contracted  previous  to  the  marriage. 
He  is  only  liable,  even  in  this  capacity,  to  the  extent  of 
such  choses  in  action,  if  any,  as  may  have  been  due  her, 
and  which  were  not  reduced  to  possession  by  him  as  her 
husband,  before  her  death,  and  which  he  must  now  resort 
to  an  administration  on  her  estate,  in  order  to  sue  for  and 
recover  them.  But  even  this  limited  liability,  we  appre- 
hend, can  only  be  enforced  in  chancery,  and  has  no  exist- 
ence at  common  law.  2  Kent's  Com.  135  ;  2  Brighfs  Husb. 
and  Wife,  2.  This,  at  all  events,  is  the  measure  and  extent 
of  his  liability  even  as  her  administrator ;  and  it  should 
therefore  appear,  if  we  were  disposed  to  recognize  and 
adopt  the  principle  as  a  rule  of  action  for  this  Court  in  this 
case,  that  there  were  such  choses  in  action  due  her,  and 
payable  to  the  defendant  as  her  administrator,  before  any 
obligation  could  be  imposed  on  him  as  such  to  pay  this 
debt  after  her  decease.  And  this  must  be  so,  for  the  ob- 
vious reason,  that  there  must  be  assets  applicable  to  the 
debt  before  the  administrator  can  be  made  liable  for  it, 
and  in  no  other  way  can  there  be  any  assets  coming  to  his 
hands  as  her  administrator,  since  all  her  personal  property 
and  effects  reduced  to  possession  by  him  before  her  death 
became  his  absolutely,  and  are  not  now  in  his  hands  as 
her  administrator.  But  the  report  of  the  referees  in  this 
case  says  nothing  about  any  choses  in  action  due  the  wife 
at  the  time  of  her  death,  and  we  must  of  course  presume 
that  there  were  none.  Judgment  must  therefore  be  en- 
tered for  the  defendant. 


YOUNG  v.  VAUGHAN.  331 


Alexander  Young  v.  Charles  Vaughan. 

A  drover  has  a  right  to  drive  his  herds  over  the  public  highways  to 
market;  and  if,  in  so  doing,  the  cattle  of  another  person  are  running 
at  large  upon  the  public  road,  which  they  have  no  right  to  do,  and 
become  accidentally  mixed  with  the  drove,  and  are  driven  off,  with  it, 
without  his  knowledge,  he  is  not  liable,  in  an  action  of  trespass,  for 
taking  and  carrying  them  away. 

This  was  an  action  of  trespass  for  driving  away  a  cow 
belonging  to  the  plaintiff.  The  defendant  was  the  owner 
of  a  drove  of  cattle  driven  on  the  highway  to  market,  and 
in  passing  near  the  plaintiff's  residence,  a  cow  of  his  by 
accident  fell  into  the  drove  and  was  driven  along  with  it. 
The  defendant,  then  being  in  the  rear,  rejoined  the  drove 
several  miles  above  the  plaintiff's  residence,  when  one  of 
his  drivers  called  his  attention  to  the  cow,  and  inquired  of 
him  if  she  belonged  to  the  drove  and  was  one  of  his  cows; 
to  which  he  replied  that  she  was,  and  stated  when  and 
where  he  had  bought  her.  She  was  much  like  other  cows 
in  the  drove,  which  was  then  driven  on  and  sold  in  New 
Castle  County,  where  the  plaintiff  afterwards  identified 
and  recovered  his  property,  which  was  returned  to  him  by 
the  purchaser,  and  the  action  was  brought  to  recover  his 
expenses  in  regaining  the  possession  of  her. 

For  the  defendant  it  was  insisted,  that  it  should  be  shown 
that  the  taking  was  tortious  and  wrongful,  and  that  he  re- 
fused to  restore  the  property  on  demand  made  for  it. 

But  the  Court  charged  the  jury,  that  although  it  must  be 
shown  that  the  taking  was  tortious  to  sustain  the  action  of 
trespass,  yet  if  the  defendant  knew  she  was  not  his  pro- 
perty, or,  having  his  attention  called  to  her  in  the  drove, 
he  failed  to  exercise  proper  diligence  to  ascertain  whether 
she  was  his  or  the  property  of  another,  the  taking  was 
wrongful,  and  he  would  be  liable  in  the  action;  for  a 
drover  has  a  right  to  drive  his  herds  over  the  public  high- 
ways to  market;  and  if  the  cattle  of  other  persons  are  at 


332  SUPERIOE  COURT. 

the  time  running  or  roaming  at  large  upon  the  public 
road,  which  they  have  no  right  to  do,  and  become  mixed 
with  them  accidentally  and  without  his  knowledge,  and 
are  driven  away  with  them  without  his  discovering  it,  or 
having  his  attention,  or  the  attention  of  his  agents,  called 
to  the  fact,  he  is  not  accountable  for  taking  them  away  in 
an  action  of  trespass;  but  if  the  facts  were  otherwise,  as 
had  before  been  stated,  he  would  be  liable  in  such  action. 

Verdict  for  the  plaintiff. 


Susannah  Fettyjohn's  Executor  v.  Levin  Pettyjohn. 

A  widow's  interest  in  the  one-third  of  the  residue  of  her  husband's  per- 
sonal estate,  who  dies  intestate,  is  a  vested  interest,  and  her  right 
attaches  immediately  on  his  death.  But  in  an  action  to  recover  it,  it  is 
not  sufficient  to  establish  her  marriage,  to  prove  that  they  were  married 
by-a  person  generally  reputed  to  be  a  Methodist  preacher.  Better  and 
stronger  evidence  than  general  reputation  is  necessary.  A  printed  copy, 
without  authentication,  of  the  minutes  of  the  Conference,  on  which  his 
name  appeared  as  a  minister,  is  not  admissible  for  this  purpose;  but 
further  proof  that  he  was  received  as  such  a  minister,  sent  by  the  Me- 
thodist Conference  on  the  circuit,  and  that  he  served  upon  it  two  years, 
administering  the  sacrament  and  other  ordinances  of  the  church,  and 
then  went  to  another  circuit,  in  the  absence  of  rebutting  evidence,  was 
held  sufficient  to  establish  his  ministerial  character  and  office. 

This  was  an  action  of  debt  by  the  executor  of  Susannah 
Pettyjohn  against  Levin  Pettyjohn,  on  his  bond  as  the 
administrator  of  Ebenezer  Pettyjohn,  deceased,  lor  one- 
third  of  the  residue  of  his  personal  estate.  Susannah 
Pettyjohn  was  the  wife  of  Ebenezer  Pettyjohn,  and  sur- 
vived him  only  a  few  days.  The  evidence  of  witnesses 
who  were  present  at  the  marriage  was,  that  they  were 
married,  about  a  year  before  Ebenezer  Pettyjohn's  death, 


PETTYJOHN'S  EXECUTOR  v.  PETTYJOHN.     333 

by  Jonas  Pusey,  who  passed  for  a  Methodist  preacher. 
Other  witnesses  testified  that  they  had  known  him  as  a 
regularly  ordained  minister  of  the  Gospel,  and  that  he  was 
received  as  such  by  the  members  of  the  Methodist  church 
at  Georgetown,  to  which  he  was  sent  by  the  Philadelphia 
Conference,  and  where  he  administered  the  sacrament  and 
other  ordinances  of  the  church  for  two  years,  and  then  re- 
moved to  another  circuit.  A  printed  copy,  in  pamphlet 
form,  of  the  minutes  of  the  Conference,  was  then  offered 
in  evidence,  but  without  any  authentication  or  proof  of  its 
having  been  issued  by  authority  of  the  body,  to  prove  his 
appointment  and  ministerial  functions,  and  was  objected  to. 

The  Court,  the  Chief  Justice  dissenting,  rejected  the 
evidence. 

C.  S.  Layton,  for  the  defendant:  The  evidence  in  the  case 
is,  that  the  widow,  Mrs.  Pettyjohn — provided  the  Court 
and  jury  were  satisfied  that  they  were  lawfully  married  by 
a  person  having  competent  authority  to  solemnize  it — died 
within  a  week  after  the  death  of  her  husband,  and  the 
question  which  he  wished  to  present  was,  whether  she 
had,  under  these  circumstances,  such  an  interest  in  the 
one-third  of  the  residue  of  his  personal  estate  as  would 
sustain  the  action  under  the  provisions  of  our  statute, 
which  ascertained  and  contemplated  no  residue  until  the 
expiration  of  a  year  after  the  death  of  the  decedent  ? 

W.  Sauhbury,  for  the  plaintiff,  replied;  and 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury :  That  it 
was  a  vested  interest,  and  the  right  of  Mrs.  Pettyjohn,  the 
widow  of  the  intestate,  attached  as  such,  immediately  on 
the  death  of  the  husband,  Ebenezer  Pettyjohn,  provided 
she  survived  him.  On  the  other  point,  as  to  the  minis- 
terial character,  functions,  and  authority  of  the  preacher 
who  married  them,  it  was  not  sufficient,  in  the  present 
action,  to  prove  it  by  general  reputation,  as  that  he  was 


334  SUPERIOR  COURT. 

generally  reputed  in  the  neighborhood  to  be  a  Methodist 
preacher;  but  it  must  be  proved  by  better  and  stronger 
evidence,  such  as  had  been  adduced  in  this  case,  which  the 
Court  deemed  sufficient,  in  the  absence  of  any  rebutting 
testimony,  to  establish  his  character  and  functions  as  a 
minister  in  that  church,  and  to  administer  its  ordinances, 
and,  of  course,  to  perform  the  marriage  ceremony  under 
our  act  of  Assembly. 

Verdict  for  the  plaintiff. 


Doe,  on  the  demise  of  Manaen  Short,  Hiram  S.  Short, 
and  Aaron  B.  Marvell,  v.  Robert  Prettyman  and 
Peter  Johnson,  Tenants  in  possession. 

The  declaration  may  be  amended  after  the  plaintiff  ha9  opened  his  case 
to  the  jury,  on  condition  of  paying  the  costs  of  the  term,  if  the  amend- 
ment is  such  as  to  require  a  continuance  on  the  part  of  the  defendant. 
But  if  it  is  not,  no  terms  will  be  imposed. 

The  validity  of  a  deed,  acknowledged  and  recorded,  maybe  impeached  in 
a  court  of  lnw,  by  proving  that  the  grantor  had  not  sufficient-apprehen- 
sion and  understanding  to  make  a  deed. 

The  parties  to  a  partition  in  chancery  are  estopped  from  denying  the 
title  of  another  party  to  it,  as  the  same  was  admitted  by  them  in  the 
proceedings,  and  was  adjudged  by  the  Chancellor  in  decreeing  the  par- 
tition; which  is  final  and  conclusive  upon  the  parties  to  the  partition  in 
all  other  courts,  unless  appealed  from  and  reversed,  even  though  they 
may  differ  with  the  Chancellor  in  the  construction  of  the  devise  on 
which  the  partition  was  decreed  and  the  title  depended.  And  the 
decree  is  binding  and  conclusive,  not  only  as  to  the  rights  which  the 
parties  had  in  the  premises  at  the  time  of  the  partition,  but  also  as  to 
the  rights  which  they  had  subsequently  acquired  from  other  heirs  of  the 
premises,  who  were  not  parties  to  the  partition,  and  were  not  bound 
by  the  admissions,  or  the  decree  establishing  it.  The  admissions  and 
the  decree  will  bind  the  rights  of  a  married  woman  who  was  with  her 
husband  a  party  to  the  proceedings,  as  well  as  others ;  but  if  the  hus- 
band subsequently  acquires,  by  purchase  in  his  own  right,  shares  in  the 
premises  of  other  heirs  who  were  not  parties  to  the  proceeding,  he  will  not 


DOE  d.  SHORT  et  al.  v.  PRETTYMAN  et  al.     335 

be  estopped,  as  to  the  shares  so  acquired,  from  denying  the  title  admit- 
ted and  decreed  in  the  partition  to  which  he  was  a  party  with  his  wife 
in  her  right. 
The  only  consideration  stated  in  a  deed  being  that  the  grantee  should 
comfortably  clothe,  board,  and  lodge  the  grantor  during  his  life,  held 
to  be  a  sufficient  consideration  to  sustain  the  deed,  the  condition  having 
been  performed. 

This  was  an  action  of  ejectment  to  recover  a  portion  of  a 
tract  of  land,  comprising  four  hundred  and  three  acres,  in 
Dogsborough  Hundred,  devised  by  Edward  Short  to  his 
sons  John  and  Isaac  Short.  So  much  of  the  will  as  is  material 
to  the  case  was  in  the  following  words:  "  3d.  My  will  and 
desire  is,  that  my  son  Isaac  should  have  my  negro  Frank, 
and  to  him  and  his  brother  John  Short  should  have  four 
hundred  acres  and  three,  to  be  equally  divided  between 
them,  agreeably  to  men;  only  I  wish  my  son  John  Short 
to  have  my  house  and  orchard  where  I  now  live.  4th.  To 
my  son  Leonard  Short,  all  the  lands  bought  of  John  John- 
son, in  Dogsborough  Hundred.  5th.  My  desire  is  that, 
after  all  the  legacies  are  paid,  the  remainder  of  my  estate 
should  be  equally  divided  between  Isaac,  and  Leonard, 
and  John,  and  Nancy,  to  them  and  their  heirs."  John 
Short,  the  son,  died  intestate,  leaving  seven  heirs;  among 
them,  Manaen  Short  and  Hiram  S.  Short,  lessors  of  the 
plaintiff;  and  Aaron  B.  Marvell,  the  husband  of  Julia  A., 
a  daughter  of  John  Short,  another  of  his  heirs,  and  also  a 
lessor  of  the  plaintiff.  After  the  death  of  John  Short, 
Isaac  Short,  the  other  devisee  named  in  the  third  item  of 
the  will,  on  the  12th  of  February,  1835,  sold  and  conveyed 
all  his  interest  in  the  premises  to  Hannah  Piper,  in  fee,  for 
the  consideration  stated  in  the  deed,  that  she  should  comfort- 
ably clothe,  lodge,  and  board  him  during  his  life.  After- 
wards, at  the  ensuing  fall  term  of  the  Court  of  Chancery, 
the  heirs-at-law  of  John  Short,- including  Aaron  B.  Marvell 
and  wife,  in  her  right,  presented  a  petition  in  the  usual 
form,  setting  forth  the  will  of  Edward  Short,  and  the  sale 
and  conveyance  by  Isaac  Short  of  his  interest  in  the  pre- 
mises to  Hannah  Piper,  and  praying  for  a  partition  of  the 
same  between  them  and  the  said  Hannah  Piper;  which 


336  SUPERIOR  COURT. 

was  afterwards  duly  decreed  between  them,  in  fee  simple, 
by  the  Chancellor.  The  lessors  of  the  plaintiff  afterwards, 
by  two  deeds  of  bargain  and  sale,  executed  in  1854,  pur- 
chased and  acquired  all  the  right  and  title  of  the  remaining 
heirs  of  John  Short  in  the  premises,  and  also  of  five  of  the 
heirs  of  Leonard  Short,  the  devisee  named  in  the  residuary 
item  of  the  will,  who  died  intestate,  leaving  in  all  six  chil- 
dren as  his  heirs-at-law  to  survive  him.  And  thereupon 
this  action  was  commenced,  to  recover  the  undivided  shares 
and  interest  of  these  several  heirs,  claimed  by  the  lessors 
of  the  plaintiff  in  the  four  hundred  and  three  acres,  by 
virtue  of  these  conveyances,  the  two  deeds  to  them  before 
mentioned. 

The  first  ground  of  objection  taken  by  the  defendants' 
counsel,  on  opening  his  case  to  the  jury,  to  the  right  of  the 
plaintiffs  to  recover,  after  they  had  closed  their  evidence, 
was  that  they  could  claim  and  recover  no  part  of  the  pre- 
mises by  virtue  of  the  two  deeds  executed  to  them  by  the 
heirs  of  John  Short  and  Leonard  Short,  in  1854;  because 
the  demise  laid  in  the  declaration  was  prior  to  that  year, 
which,  according  to  their  own  showing,  was  before  their 
title  under  those  deeds  accrued;  upon  which  the  counsel 
for  the  plaintiffs  asked  leave  to  amend,  so  as  to  lay  the 
demise  in  the  narr  subsequent  to  the  date  of  the  last  deed. 
The  counsel  for  the  defendants  resisted  the  application,  on 
the  ground  that  it  was  too  late,  particularly  as  the  plaintiffs 
had  closed  their  testimony  in  the  case,  and  he  was  now 
opening  the  defence  to  the  jury. 

By  (he  Court :  The  object  of  our  recent  statute  is  to  allow 
amendments  either  in  form  or  substance  any  time  before 
judgment,  on  such  terms  as  the  Court  may  deem  reason- 
able under  the  circumstances,  to  prevent  a  failure  of  jus- 
tice, or  unnecessary  delay  in  the  judicial  administration  of 
it,  by  reason  of  mistakes,  accidents  or  surprises  of  this 
character.  The  Court  will  therefore  allow  the  amendment 
to  be  made  by  the  plaintiffs,  on  condition  that  they  pay  the 
costs  of  the  term  and  grant  a  continuance  of  the  case,  it 


DOE  d.  SHORT  jet  al.  v.  PRETTYMAN  et  al.     337 

the  counsel  for  the  defendants  requires  it.  The  counsel  for 
the  defendants  replied  that  he  was  willing  to  proceed  with 
the  trial,  if  the  costs  of  the  term  were  paid  by  the  plain- 
tiffs. But  the  Court  said  that  if  the  amendment  did  not 
require  a  continuance  of  the  case  on  the  part  of  the  defen- 
dants, they  could  impose  no  condition  on  the  plaintiffs  a^ 
to  the  costs  of  the  term.  After  some  consultation  between 
the  counsel,  however,  the  plaintiffs  agreed  to  pay  the  costs 
of  the  term,  and  the  trial  proceeded. 

The  defendants'  counsel  then  offered  in  evidence  the 
deed  of  Isaac  Short  to  Hannah  Piper,  dated  January  12, 
1835,  for  his  share  of  the  premises,  which  was  objected  to 
on  the  other  side,  first  because  it  appeared  to  be  null  and 
void  upon  its  face,  and  secondly  because  the  grantor  was 
incompetent,  by  reason  of  his  mental  incapacity,  to  make 
a  valid  deed  at  that  time.  But  the  Court  overruled  the 
objections.  They  applied  to  the  effect,  not  the  admissi- 
bility of  the  deed,  as  evidence  for  what  it  was  worth.  For 
if  it  appeared  to  be  formally  executed,  and  was  delivered 
as  his  deed,  it  was  admissible  in  evidence,  and  the  grounds 
of  objection  were  matters  for  consideration  before  the  jury. 

He  then  put  in  evidence  sundry  other  deeds,  by  which 
he  traced  the  title  from  Hannah  Piper  in  the  premises  to 
Robert  Prettyman,  one  of  the  defendants.  After  which, 
testimony  was  adduced  on  the  part  of  the  plaintiffs  to  prove 
that  Isaac  Short,  who  was  now  dead;  was  in  his  lifetime~a 
person  of  weak  and  imbecile  mind,  and  had  been  so  from 
his  birth ;  that  he  was  non  compos  mentis,  and  was  conse- 
quently incapable  of  making  a  valid  deed  and  conveyance 
for  his  interest  and  estate  in  the  premises  to  Hannah  Piper, 
from  whom  the  defendant  R.  Prettyman  derived  his  title. 
During  the  examination  of  the  second  witness  to  this  point, 

W.Saulsbury,  for  the  defendants,  raised  the  objection  that 
the  testimony  was  not  admissible.  The  plaintiffs  were  es- 
topped by  the  proceedings  in  chancery  on  their  petition 
for  partition  of  the  premises  between  themselves  as  the 
heirs  of  John  Short  and  II.  Piper  as  the  grantee  of  Isaac 


338  SUPERIOR  COURT. 

Short,  in  which  she  was  admitted  and  recognized,  alike  in 
the  petition,  the  commission  to  make  the  partition,  and  in 
the  decree  of  the  Chancellor  affirming  and  establishing  it, 
as  seized  in  fee  of  the  one  moiety  of  the  premises,  by  vir- 
tue of  the  said  Isaac  Short's  deed  to  her,  as  tenants  in 
common  with  them  who  were  seized  of  a  like  interest  and 
estate  in  them,  under  the  devise  by  Edward  Short  to  John 
Short,  their  father.  1  Greenl.  Ev.,  sees.  22,  23,  207,  528; 
Jackson  v.  Hoffman,  9  Cow.  271 ;  Inskeep  et  al.  v.  Shields  et  at, 
4  Harr.  345 ;  Tubbs  v.  Lynch,  4  Harr.  521 ;  Slean  v.  Ander- 
son, 4  Harr.  209.  Furthermore,  it  was  not  competent  in  a 
court  of  law  to  impeach  the  validity  of  a  deed  executed, 
acknowledged  and  recorded,  on  the  ground  of  the  mental 
incapacity  of  the  grantor  to  make  it,  at  least  it  had  never 
been  done  in  this  State. 

C.  S.  Layton,  for  the  plaintiffs  :  It  is  competent  in  a  court 
of  law  to  impeach  a  deed  on  the  ground  stated.  Porter  v. 
Buckingham,  2  Harr.  197.  Under  the  will  of  Edward  Short, 
and  according  to  the  construction  given  to  it  by  this  Court, 
in  the  case  of  Connoway  v.  Piper,  3  Harr.  482,  John  Short 
and  Isaac  Short  took  but  a  life  estate  in  the  lands  devised 
to  them  in  the  third  item  of  it,  and  the  petition  in  chan- 
cery for  the  partition  of  it  between  the  heirs  of  John  Short 
and  II.  Piper  as  the  alienee  of  Isaac  Short,  did  not  allege 
any  larger  estate  in  them.  It  was  therefore  not  within  the 
power  or  jurisdiction  of  that  or  any  other  tribunal,  by  the 
commission  or  the  decree  affirming  the  partition,  to  confer 
upon  the  parties  any  other  estate  in  the  premises  than  that 
which  they  took  under  the  devise  in  question.  5  Law  Libr. 
60;   Greenl.  Ev.,  sees.  22,  23. 

E.  1).  (^ullen,  on  the  same  side :  A  party  was  not  estop- 
ped from  averring  anything  consistent  with  the  record.  1 
Sound.  PI.  $•  Ev.  62.  The  will  was  a  part  of  the  record, 
and  by  it  it  appeared  that  the  parties  in  partition  had  but 
a  life  estate.  Again,  a  party  was  not  estopped  by  a  record 
coram  nonjudice,  and  the  Chaneellor  exceeded  his  jurisdic- 


DOE  d.  SHORT  et  al.  v.  PRETTYMAN  et  al.     339 

tion  in  decreeing  a  fee,  and  the  parties  were  not  estopped 
from  denying  that  they  took  a  fee  under  the  will.  A  re- 
mainderman is  not  bound  by  a  partition  between  the  ten- 
ants for  life,  and  to  which  he  was  not  a  party.  The  alle- 
gation must  be  certain  to  every  intent  in  particular,  and  if 
a  thing  be  not  particularly  and  certainly  alleged,  a  party 
should  not  be  estopped  by  it.  Arch.  PL  208.  Where  was 
it  particularly  and  certainly  alleged  in  the  proceedings  in 
chancery  that  the  parties  to  the  partition  took  a  fee?  The 
plaintiffs  therefore  were  not  estopped  from  denying  that 
Isaac  Short  took  but  a  life  estate  under  the  will.  8  Mees. 
$  Wels.  209 ;  5  Cow.  201 ;  7  Mass.  78 ;  19  Wend.  367 ;  17 
Wend.  119;  4  Wend.  278.  A  deed  may  be  impeached  in 
a  court  of  law  on  the  ground  of  the  imbecility  of  the 
grantor.    2  Law  Libr.  163 ;  25  Idem,  15. 

By  the  Court :  The  plaintiffs  in  this  suit  may  impeach  the 
deed  in  question,  notwithstanding  it  was  executed,  acknow- 
ledged, and  recorded,  if  they  can  show  to  the  satisfaction 
of  the  jury  that  the  grantor  had  not  sufficient  intelligence 
and  understanding  to  know  what  he  was  doing  when  he 
made  it.  The  acknowledgment  and  recording  establishes 
the  factum  of  the  deed,  and  dispenses  with  any  proof  as  to  its 
execution  and  delivery  ;  but  this  does  not  exempt  it  from 
impeachment  in  a  court  of  law,  on  the  ground  of  fraud,  or 
imposition,  or  that  the  grantor  was  non  compos  mentis  and 
had  not  sufficient  capacity  to  comprehend  the  nature  and 
effect  of  it,  or  to  make  a  valid  deed  at  the  time  of  executing 
and  acknowledging  it. 

In  regard  to  the  other  objection,  made  to  the  admissi- 
bility of  the  testimony,  the  principle  of  estoppel  is,  that 
what  a  party  admits  by  deed  or  of  record  to  be  true,  in 
reference  to  his  own  title,  or  that  of  another  party,  he  can- 
not afterwards  deny,  to  the  prejudice  of  any  party  who 
would  be  injured  by  the  denial  of  that  admission.  Edward 
Short  was  the  owner  of  the  four  hundred  and  three  acres 
in  dispute,  in  fee,  and  devised  the  premises  without  limita- 
tion to  his  sons  John  and  Isaac  Short.     The  latter  con- 


340  SUPERIOE  COURT. 

veyed  his  undivided  half  to  Hannah  Piper  in  fee.  John 
Short  died,  and  his  heirs-at-law,  among  whom  were  the 
lessors  of  the  plaintiff,  instituted  proceedings  in  chancery 
for  the  partition  of  the  land  between  them  and  Mrs.  Piper, 
in  which  proceedings  they  admit  the  title  of  Edward  Short 
and  of  Isaac  Short,  and  also  of  the  title  of  Mrs.  Piper, 
through  this  deed  of  Isaac  Short,  and  submit  to  a  decree 
of  the  Chancellor,  assigning  the  land  in  severalty,  one-half 
to  themselves  as  the  heirs  of  John  Short,  and  the  other 
half  to  Hannah  Piper  in  fee.  Under  these  proceedings  the 
parties  went  into  possession  of  their  respective  portions, 
and  the  question  now  is,  whether  the  lessors  of  the  plain- 
tiff are  estopped  to  deny  or  controvert  the  title  of  Hannah 
Piper,  under  whom  Prettyman,  one  of  the  defendants, 
claims  the  moiety  assigned  to  her,  then  admitted  by  the 
proceeding  itself,  and  established  by  the  decree.  The  ar- 
gument against  the  force,  effect  and  validity  of  this  estoppel 
is,  that  the  present  denial  of  the  title  is  not  inconsistent 
with  the  record,  which  shows  the  title  by  reference  to  the 
will  of  Edward  Short ;  and  that  if  the  decree  in  partition 
went  beyond  a  title  for  the  life  of  Isaac  Short,  it  was  coram 
non  judice,  and  biuds  no  one.  Authorities  have  been  cited 
to  show  that  in  a  partition  between  tenants  for  life,  though 
extended  to  reversioners,  such  proceedings  would  not  estop 
the  reversioners  from  controverting  it.  This  is  true.  But 
the  partition  in  this  case  was  not  between  tenants  for  life ; 
it  was  between  the  heirs  of  John  Short  (whose  interest  it 
then  was  to  assert  and  maintain  that  John  Short  took  an 
estate  in  fee  in  the  one-half  under  the  will,  and  Isaac  Short, 
of  course,  a  fee  in  the  other  half),  and  the  Hame  in  Hannah 
Piper,  assignee  of  the  latter's  interest.  The  proceedings 
referred  to  the  will  of  Edward  Short,  and  this  title  was 
properly  before  the  Chancellor  and  entered  into  his  judg- 
ment. The  matter  was  therefore  adjudged  by  him ;  and, 
having  been  decided  by  a  court  of  competent  jurisdiction 
between  the  parties,  it  was  final,  unless  appealed  from  and 
reversed,  and  it  is  the  law  as  between  them,  when  coming 
in  question  in  another  court.     The  opinion  of  this  Court 


DOE  d.  SHORT  et  al.  v.  PRETTYMAN  et  al.    341 

upon  the  will  in  the  case  of  Connoway  v.  Piper,  3  Harr.  482, 
has  no  effect  to  reverse  this  decision  and  decree  of  the 
Court  of  Chancery,  which  entertained  a  different  opinion 
on  the  construction  of  the  will.  By  a  provision  of  the 
statute  in  regard  to  the  partition  of  estates,  the  decree  of 
the  Chancellor  in  such  cases  is  binding  and  conclusive 
upon  the  parties,  and  all  claiming  under  them,  unless  ap- 
pealed from,  which  was  not  done  in  this  case.  And  this, 
itself,  would  conclude  the  parties  from  now  controverting 
the  estate  and  title  of  Mrs.  Piper,  independent  of  any  ad- 
mission by  way  of  estoppel  in  the  record. 

But  as  Leonard  Short  was  no  party  to  the  proceeding 
in  partition,  and  he  was  one  of  the  residuary  devisees  in 
remainder  of  the  estate  in  fee,  after  the  determination  of 
Isaac  Short's  life  estate,  under  the  third  item  of  the  will, 
and  is  now  deceased,  leaving  six  children  as  his  heirs-at- 
law,  five  of  whom  have,  since  the  partition  in  chancery, 
conveyed  their  interest  in  the  premises  to  the  lessors  of 
the  plaintiff,  of  whom  Aaron  B.  Marvell  is  one,  claiming 
whatever  share  he  may  be  entitled  to  under  this  deed,  in 
his  own  right  individually,  and  not  in  right  of  his  wife, 
Julia  Ann  Short,  one  of  the  children  and  heirs-at-law  of 
John  Short,  in  which  right  and  with  whom  he  was  joined 
as  his  wife,  as  a  party  in  the  proceeding  for  partition,  he 
is  not  estopped  by  it,  so  far  as  this  interest,  subsequently 
acquired  by  him  by  purchase  in  his  own  right  from  the 
heirs  of  Leonard  Short,  is  concerned,  from  denying  or 
controverting  the  title  of  Mrs.  Piper,  under  her  deed  from 
Isaac  Short;  and  therefore  it  is  competent  for  him  to  im- 
peach the  validity  of  that  deed,  by  showing,  if  he  can,  the 
incapacity  of  the  grantor  at  the  time  of  executing  and  ac- 
knowledging it. 

The  plaintiffs'  counsel  then  proceeded  with  the  examina- 
tion of  their  witnesses  on  the  latter  point,  by  whom  they 
proved  much  natural  weakness  and  deficiency  of  intelli- 
gence and  apprehension  on  the  part  of  Isaac  Short,  the 
grantor. 


342  SUPERIOR  COURT. 

In  their  argument  to  the  jury  they  contended,  1.  That  the 
lessors  of  the  plaintiff  were  not  estopped  to  deny  the  title 
under  which  the  defendants  claimed,  by  the  partition  in 
chancery,  so  far  as  their  title  depended  on  the  conveyance 
from  the  heirs  of  Leonard  Short,  which  was  one-fourth  of 
the  whole  tract,  and  as  he  left  six  heirs,  five  of  whom  they 
had  bought  out,  that  share  in  their  hands  amounted  to 
five-sixths  of  the  one-fourth  of  the  four  hundred  and  three 
acres.  2.  That  Julia  A.,  the  wife  of  Aaron  B.  Marvell, 
one  of  the  lessors  of  the  plaintiff,  being  one  of  the  heirs  of 
John  Short,  though  a  party  with  her  husband  to  the  peti- 
tion and  the  proceedings  in  the  partition,  was  not  estopped 
by  them,  because  no  admission  of  a  married  woman  even 
by  record  could  have  that  effect.  Arch.  Civil  PL  111 ;  1 
Greenl.  Ev.,  sec.  24.  3.  That  the  consideration  named  in 
the  deed  from  Isaac  Short  to  Hannah  Piper  was  not  a 
good  and  valid  consideration  to  support  it  in  law,  it  being 
in  consideration  of  an  engagement  to  maintain  him  for 
life,  which  was  an  executory  agreement  on  her  part,  which 
she  did  not  even  sign,  and  which  she  might  never  perform  ; 
such  an  agreement  was  not  a  good  consideration  for  a  deed. 

For  the  defendants  it  was  replied,  that  the  lessors  of  the 
plaintiff  were  estopped,  not  only  as  the  heirs  of  John  Short, 
but  also  as  the  alienees  of  the  five  out  of  the  six  heirs  of 
Leonard  Short,  except  as  to  the  interest  of  Aaron  B.  Mar- 
vell, which  he  held  under  their  conveyance  by  subsequent 
purchase  in  his  own  right,  and  not  in  right  of  his  wife. 
But  both  lie  and  his  wife  were  estopped  as  to  her  right, 
by  the  decree  of  the  Chancellor,  as  they  were  both  parties 
to  the  partition,  and  in  such  a  proceeding  a  married  woman 
was  bound  and  concluded  by  it,  as  much  so  as  her  hus- 
band ;  and  that  the  consideration  set  forth  in  the  deed  from 
Isaac  Short  to  Mrs.  Piper  had  been  performed,  for  she  had 
comfortably  maintained  him  until  his  death,  and  was  a 
good  and  sufficient  consideration  for  it. 

The  Court,  Harrington,  Ch.  «/.,  charged  the  jury :  This  is 
an  action  of  ejectment  to  recover  a  portion  of  403  acres  of 


DOE  d.  SHORT  et  al.  v.  PRETTYMAN  et  al.    343 

land,  situated  in  Dogsborough  Hundred  in  this  county,  de- 
vised by  Edward  Short,  without  words  of  limitation  as  to 
the  title,  to  his  sons  John  and  Isaac  Short,  with  a  residuary 
devise  over  to  Isaac,  Leonard,  John,  and  Nancy  Short,  his 
children,  in  fee.  Isaac  Short,  by  deed  dated  February  12, 
1835,  conveyed  his  undivided  share  of  the  land  to  Hannah 
Piper,  her  heirs  and  assigns,  under  whom  the  defendants 
claim  title.  In  September,  1835,  John  Short,  then  being 
dead,  his  heirs-at-law,  now  represented  in  this  suit  by  the 
lessors  of  the  plaintiff,  and  who  hold  all  his  interest  in  the 
premises,  went  into  the  Court  of  Chancery  and  made  parti- 
tion of  the  land  devised  between  themselves  and  Hannah 
Piper,  admitting  in  their  proceeding,  and  it  was  so  decreed 
by  the  Chancellor,  that  the  parties  named  held  the  land  in 
fee,  under  the  devise  to  John  and  Isaac  Short. 

The  present  plaintiffs,  who  were  parties  to  that  proceed- 
ing, now  contend  that  the  title  of  Isaac  and  John  Short, 
under  this  will,  was  only  a  life  estate ;  and  though  they 
took  it  in  severalty  under  the  decree  of  the  Chancellor, 
and  submitted  to  that  decree,  giving  to  Hannah  Piper,  as 
the  assignee  of  Isaac  Short,  the  other  half  of  it  in  fee, 
they  now  insist  that  it  was  but  a  life  estate,  and  went,  on 
the  death  of  John  Short,  not  to  his  heirs,  and  on  the  death 
of  Isaac  Short,  not  to  his  assignee,  but  to  the  residuary  de- 
visees of  Edward  Short;  viz.,  to  Isaac  and  Leonard  and 
John  and  Nancy  Short,  and  their  heirs. 

The  first  question  then  is,  whether  the  parties  to  this 
action,  who  were  parties  to  the  petition  in  chancery,  can 
now  deny  the  title  of  Hannah  Piper,  as  it  was  decided  in 
that  case,  to  be  a  fee  simple  ? 

Secondly,  whether  the  plaintiffs,  who  represent  a  person 
who  was  not  a  party  to  that  proceeding,  can  controvert 
that  decision  ? 

Thirdly,  whether  the  plaintiff's,  who  were  parties  to  that 
proceeding,  but  now  represent  a  portion  of  the  share  of  a 
person  who  was  not  a  party  to  that  proceeding,  can  con- 
trovert the  decision  ? 

The  decree  of  the  Court  of  Chancery   in   this   partition 


344  SUPERIOR  COURT. 

being  on  the  title,  includes  all  parties  to  it  and  their  pri- 
vies, and  estops  all  parties  from  denying  its  correctness  or 
force  in  respect  to  any  interests  which  they  then  had  the 
opportunity  of  defending.  Their  admissions  must  be  taken 
to  be  true.  They  cannot  be  true  as  to  a  right  which  they 
then  had,  and  untrue  as  to  rights  subsequently  acquired 
under  the  same  title.  The  admission  does  not  apply  to 
the  quantity  of  the  estate,  but  to  the  quality  of  the  title ; 
and  as  to  any  party  then  before  the  Court,  it  must  be 
taken  to  be  true,  that  the  estate  of  Isaac  Short  and  of  Han- 
nah Piper  his  assignee  is  a  fee  simple  estate;  and  no  one 
can  controvert  this,  except  a  person  who  was  not  a  party 
to  that  suit  and  that  decree. 

This  applies  to  all  the  children  of  Edward  Short,  except 
Leonard  and  Nancy,  and  to  such  as  were  femes  covert  as 
well  as  others,  if  parties ;  for  the  decree  of  a  Court  of  Chan- 
cery in  partition  operates  on  the  interests  of  married  wo- 
men and  infants  as  well  as  others. 

Nancy  Short  is  not  a  party  to  this  suit ;  and  the  only 
question  then  is,  who  of  the  representatives  of  Leonard 
Short  in  this  suit  are  now  at  liberty  to  claim,  against  this 
decree,  that  his  father,  John  Short,  had  but  a  life  estate  in 
this  land,  and  Hannah  Piper  only  an  estate  for  the  life  of 
Isaac  Short? 

Leonard  Short  left  six  children,  five  of  whom  conveyed 
their  interests  to  the  plaintiffs,  Manaen  Short,  Hiram  S. 
Short,  and  Aaron  B.  Marvell.  Leonard  Short  was  not  re- 
presented in  the  chancery  suit,  but  the  persons  to  whom 
five  of  his  heirs  conveyed  their  title  were  all  in  that  suit 
and  are  all  concluded  by  the  decree,  except  Aaron  B.  Mar- 
vell. He,  therefore,  is  the  only  person  entitled  to  recover 
anything  in  this  suit,  and  he  can  recover  only  the  interest 
he  took  under  this  deed  as  a  portion  of  Leonard  Short's 
share;  for  though  he  had  another  interest  as  the  husband 
of  Julia  Ann  Short,  her  interest  was  included  in  the  par- 
tition deeree. 

The  question,  therefore,  of  the  validity  of  Isaac  Short's 
deed  to  Hannah  Piper  and  of  the  capacity  of  the  grantor, 


DOE  d.  SHORT  et  al.  v.  PRETTYMAN  et  al.      345 

is  immaterial  in  this  case,  except  as  to  the  residuary  in- 
terest of  Isaac  Short,  inherited  from  him  by  Leonard,  and 
conveyed  to  Aaron  B.  Marvell.  The  decree  of  the  Chan- 
cellor established  by  its  own  force,  as  well  as  on  the  prin- 
ciple of  estoppel,  arising  from  the  admission  of  the  parties, 
that  the  title  of  Hannah  Piper,  however  acquired,  was  a 
fee  simple.  That  decree  is  still  in  force.  It  cannot  be 
controverted  in  this  suit,  nor  can  its  truth  be  denied  by 
any  person,  or  the  representative  of  any  person,  who  was 
a  party  to  it,  and  whom  it  bound-  It  is  made  by  our  own 
code,  as  to  all  such,  to  be  conclusive-  And  any  other  rule 
would  result  in  endless  confusion.  When  a  title  is  once 
adjudged,  the  decision  must  be  respected,  and  is  binding 
on  the  same  parties,  whenever  coming  in  question  in  any 
other  court.  There  is  but  one  mode  of  avoiding  it,  and 
that  is  by  appeal. 

The  controverting  this  deed  denies  the  title  of  Hannah 
Piper,  as  settled  by  the  chancery  decree.  The  assertion  of 
a  right  in  plaintiffs  to  her  half  of  this  land,  whether  as  the 
heirs  of  John  Short,  or  as  the  heirs  of  Leonard  Short,  or 
of  Isaac  Short,  under  the  residuary  devise  of  Edward  Short's 
will,  is  alike  prohibited  by  this  decree.  It  denies  the  title 
established  by  it,  and  sets  up  a  claim  under  a  residuary 
devise,  which,  according  to  that  decree,  gave  nothing  to 
these  devisees,  because  the  first  devise  to  John  and  Isaac 
"was  a  fee  simple  estate. 

This  is  the  rule  as  to  all  parties  who  are  bound  by  the 
partition  decree.  As  to  others,  the  deed  is  of  no  further 
consequence  than  as  to  the  residuary  right  of  Isaac  Short. 
The  title  as  to  them,  of  whom  Leonard  Short  is  the  only 
one  whose  rights  are  now  involved  in  this  proceeding,  and 
only  Aaron  B.  Marvell's  share  of  them,  according  to  our 
opinion,  is  such  as  it  was  adjudged  to  be  in  the  case  of 
Conoway  and  Wife  v.  Piper,  3  Harr.  Jicp.  482. 

According  to  this,  the  plaintiff,  Aaron  B.  Marvell,  is  en- 
titled to  recover  his  share  of  the  share  of  Leonard  Short 
in  the  lands  held  by  defendant. 

23 


346  SUPERIOR  COURT. 

Under  the  will  of  Edward  Short,  as  construed  by  us,  the 
title  to  all  this  land,  on  the  death  of  John  and  Isaac  Short, 
was  in  Isaac's  heirs,  Leonard's  heirs,  and  John's  heirs,  and 
Nancy  Short. 

Leonard  Short  was  entitled  to  one-fourth;  and  if  the 
deed  of  Isaac  Short  to  Hannah  Piper  is  not  good,  he  was 
entitled  to  one-third  of  one-fourth,  as  the  heir-at-law  of 
Isaac;  but  not  otherwise;  for  if  that  deed  is  good,  it  con- 
veyed Isaac's  right  to  Mrs.  Piper. 

As  we  have  before  said,  Leonard 'Short  left  six  children, 
live  of  whom  conveyed  to  these  plaintiffs ;  one  of  whom, 
Aaron  B.  Marvell,  is  entitled  to  enforce  his  claim,  notwith- 
standing the  chancery  decree,  and  against  it.  He  is  there- 
fore entitled  to  recover  one-third  of  five-sixths  of  one- 
fourth  of  all  the  land  in  defendants'  possession,  which  was 
devised  by  Edward  Short,  under  the  residuary  clause  of  his 
will,  to  Leonard  Short ;  and  also,  if  the  deed  of  Isaac  Short 
is  set  aside,  one-third  of  live-sixths  of  one-third  of  another 
fourth,  as  the  heir-at-law  of  Isaac  Short,  under  the  residu- 
ary devise.  But  if  the  deed  of  Isaac  Short  to  Mrs.  Piper 
is  considered  by  the  jury  to  be  a  valid  deed,  the  title  of 
Isaac  Short,  as  residuary  devisee,  belongs  under  that  deed 
to  Hannah  Piper,  and  Mr.  Marvell  can  recover  only  one- 
third  of  five-sixths  of  one-fourth  of  the  half  of  403  acres. 
As  to  the  alleged  want  of  capacity  of  Isaac  Short  to  make 
a  valid  deed,  if  he  had,  at  the  time  of  making  his  deed  to 
Mrs.  Piper,  sufficient  intelligence,  apprehension,  and  un- 
derstanding, to  comprehend  the  general  nature,  effect,  and 
object  of  the  instrument,  and  knew  that  it  was  a  deed  for 
his  interest  in  the  land,  and  that  if  he  signed  and  executed 
it,  it  would  then  become  the  property  of  Mrs.  Piper,  for 
the  consideration  and  purposes  stated  in  it,  then  it  was  his 
deed,  and  a  good  and  valid  conveyance  of  the  land  to  her, 
so  far  as  this  objection  applies.  The  consideration  was  to 
be  paid  in  the  support  and  maintenance  of  him  for  life,  by 
Mrs.  Piper, — a  very  unusual  consideration  tor  a  deed,  we 
must  admit,  but  not  an  unreasonable,  or  an  uncharitable 
one   perhaps,  under  the  circumstances.      Lands  are  often 


STATE,  use  of  MBSSICK'S  ADMR.,  v.  MESSICK.    347 

bought  on  credit,  though  not  so  expressed  in  the  deed  for 
them,  and  the  actual  consideration  is  afterwards  paid  like 
any  other  debt,  and  in  any  mode  of  dealing  the  parties 
may  adopt  between  them.  As  it  is  expressed,  however, 
in  this  case,  in  the  deed  itself,  and  was  a  conditional  con- 
sideration, we  do  not  see  why  it  should  be  avoided,  if  the 
consideration  was  performed ;  and  if  the  jury  are  satisfied 
that  it  was,  we  think  the  validity  and  operation  of  it  as  a 
deed  cannot  be  impeached  on  the  ground  merely  that 
such  was  the  nature  of  the  consideration,  though  expressed 
in  the  deed  itself.  And  if  this  be  so,  it  was  no  objection 
to  the  validity  of  it  that  it  was  not  signed  by  Mrs.  Piper 
also.  This  would  be  a  very  unusual  thing  in, a  deed  of 
bargain  and  sale,  nor  would  her  signature  to  it  be  neces- 
sary to  make  the  engagement  an  express  covenant  on  her 
part,  as  she  accepted  the  conveyance  and  the  estate  which 
it  conferred  on  that  condition  and  for  that  consideration 
merely. 

C.  M.  and  E.  D.  Cullen,  and  C.  S.  Layton,  for  plaintiffs. 

W.  Saulsbury,  for  defendants. 


The  State,  for  the  use  of  Jacob  Messick's  Administrator, 
v.  Wilson  Messick  and  others,  Terre-tenants. 


A  receipt  under  seal  is  conclusive,  and  cannot  be  contradicted  by  parol 

evidence. 


Scire  facias  on  a  recognizance  in  the  Orphans'  Court, 
upon  the  appraisement  and  acceptance  by  Wilson  Messick 
of  the   intestate   real  estate   of  Jacob  Messick,  deceased. 


348  SUPERIOR  COURT. 

On  the  trial,  the  defendants  produced  and  gave  in  evidence 
the  following  receipt,  under  the  hand  and  seal  of  Jacob 
Messick:  "Received,  January  17,  1849,  of  Philip  Short, 
the  sum  of  sixty-nine  dollars  and  thirty-six  cents,  in  full 
of  all  the  part  and  claim  that  I  had  in  my  father's  land, 
and  also  my  mother's  dower;"  which  they  insisted  was 
conclusive,  and  could  not  be  contradicted  by  parol  evi- 
dence. 

The  Court  charged  the  jury,  that  a  receipt  under  seal  is 
conclusive,  and  cannot  be  controverted;  but  it  was  for  them 
to  say  whether  the  sum  stated  in  the  receipt  to  have  been 
received  of  Philip  Short,  was  applicable  to  the  recogni- 
zance. If  it  was,  it  was  conclusive,  and  could  not  be  con- 
tradicted by  parol  evidence.  Outten  v.  Knowles  et  al.t  4 
Hair.  533 ;  5  Saund.  PL  £  Ev.  749. 


Nathaniel  W.  Vaughn  v.  Aaron  Marshall. 

A  writ  of  certiorari  is  barred  after  five  years,  and  will  not  lie  where  there 
is  no  judgment;  and  upon  these  grounds  will,  on  motion,  be  dis- 
missed. 

Certiorari  to  Justice  Lofland.  The  original  judgment 
was  entered  before  Peter  Hall,  J.  P.,  July  10th,  1830,  on 
which  a  scire  facias  was  issued  by  Justice  Lofland,  on  the 
26th  of  March,  1856,  and  the  plaintiff  below  obtained 
judgment  by  default,  which  was  afterwards  opened  by  the 
justice,  on  the  application  of  the  defendant  below,  and  the 
parties  let  into  a  new  trial;  but  before  the  case  had  again 
proceeded  to  judgment,  the  defendant  below  and  plaintiff 
in  the  writ  sued  out  the  certiorari.  The  errors  assigned 
were:  1.  That  the  certiorari  was  barred  on  the  original 
judgment,  having  been  entered  more  than  five  years  before 
it  was  sued  out.     2.  That  the  writ  of  certiorari  was  sued 


KING  v.  PHILLIPS.  349 

out  prematurely,  and  before  final  judgment  in  the  scire 
facias,  a  writ  of  error  not  lying  where  there  is  no  judg- 
ment. On  which  the  counsel  for  the  defendant  moved  the 
Court  to  dismiss  the  writ. 

The  Court  sustained  the  motion  on  both  grounds,  and 
dismissed  the  certiorari. 


Southey  King  v.  Joshua  Phillips. 

Leave  to  amend  will  only  be  granted  on  payment  of  the  costs  of  the  term, 
if  the  amendment  is  such  as  to  require  a  continuance  of  the  case  on  the 
other  side. 

In  a  devise  to  a  wife,  "  during  her  widowhood,  of  one-half  of  a  farm,  also 
a  negro  slave,  Hetty  ;  further,  I  will  unto  her  the  privilege  of  getting 
firewood,  &c,  on  any  of  my  land;  further,  I  will  unto  her  to  have  and 
to  hold,  during  her  natural  life,  the  following  property,"  &c.  Held, 
that  the  bequest  of  the  slave  to  her  was  during  her  widowhood  only. 

Replevin  for  a  negro  slave,  bequeathed  by  Spencer 
Phillips  to  his  wife,  Unicy  Phillips,  in  the  following  clause 
of  his  will :  "  I  give  and  bequeath  to  my  beloved  wife, 
Unicy  Phillips,  during  her  widowhood,  one-half  of  the 
farm  my  father  gave  me,  with  one-half  of  the  orchard,  and 
one-half  of  the  buildings  thereon;  to  have  her  choice;  also 
one  negro,  Hetty.  Further,  I  will  unto  her  the  privilege 
of  getting  tirewood  and  rail  timber  upon  any  of  my  lands. 
Further,  I  will  unto  her  to  have  and  to  hold,  during  her 
natural  life,  to  use  and  dispose  of  as  she  may  deem  best, 
the  following  property,  viz.,"  &c.  Southey  King,  the 
plaintiff,  after  the  death  of  Spencer  Phillips,  married  his 
widow,  Unicy  Phillips,  and  made  a  demand  on  Joshua 
Phillips,  the  defendant,  who  was  the  executor  of  the  tes- 
tator, for  the  slave  Hetty,  then  in  his  possession,  who 
refused  to  deliver  her  to  the  plaintiff,  on  the  ground  that 
the  gift  of  her  to  Unicy  Phillips,  under  the  will,  had  de- 
termined by  her  marriage  to  the  plaintiff;  and  the  ques- 


350  SUPERIOR  COURT. 

tion  was,  whether  the  bequest  to  her,  under  the  item  of  the 
will  stated,  was  during  her  widowhood,  or  for  the  life  of 
Unicy  Phillips. 

The  counsel  for  the  plaintiff  called  a  witness  to  prove  the 
Value  of  the  slave,  which  was  objected  to  on  the  other  side; 
because  the  declaration  was  in  thedelinuit  only, and  the  value 
of  the  property  was  not  involved  in  the  issue;  and  this  ap- 
pearing to  be  the  case,  the  plaintiff  asked  leave  to  amend, 
by  adding  a  count  in  the  detinet,  which  the  Court  granted  on 
payment  of  the  costs  of  the  term,  in  case  the  defendant 
required  a  continuance;  but  the  defendant  did  not,  and 
the  trial  proceeded;  and  when  the  testimony  was  closed, 
the  Court  charged  the  jury,  that  the  bequest  of  the  slave 
to  Unicy  Phillips  was  during  her  widowhood  only,  and  on 
her  marriage  to  the  plaintiff  she  reverted  to  the  executor 
of  the  testator,  and  sunk  again  into  his  personal  estate,  or 
passed  under  the  residuary  bequest  to  his  residuary  le- 
gatees. 


Charles  C.  Stockley,  Sheriff,  v.  Luther  C.  Wadman, 
Constable. 

An  execution  binds  the  goods  of  the  defendant  from  the  time  it  comes  to 
the  hunds  of  the  sheriff,  but  a  writ  of  foreign  attachment  only  from  the 
taking  of  them  by  the  officer.  An  actual  taking  into  his  exclusive  pos- 
session, however,  is  not  necessary  ;  the  making  of  an  inventory  with  a 
view  to  the  appraisement  of  the  goods  under  the  latter  writ  will  consti- 
tute a  taking  in  law,  and  being  then  in  the  legal  custody  and  possession 
of  a  constable  so  inventorying  them  under  a  writ  of  foreign  attachment, 
it  will  have  preference  over  executions  afterwards  coming  to  the  hands 
of  the  sheriff  on  the  same  day. 

This  was  a  case  stated,  between  the  sheriff  and  consta- 
ble, the  parties  to  it,  as  to  the  application  of  money  in  the 
hands  of  the  latter,  in  which  the  opinion  and  judgment  of 
the  Court  was  asked  on  the  following  statement  of  facts: 

The  constable  had  levied  on  certain  goods  and  chattels 


STOCKLEY  v.  WADMAN.  351 

of  Samuel  G.  Willey,  a  non-resident,  four  several  execu- 
tions, issued  at  the  suit  of  sundry  parties  against  him,  by 
3  o'clock  p.  m.,  March  7,  1857,  and  took  into  his  posses- 
sion, under  the  executions,  a  pair  of  mules,  a  wagon,  and  a 
horse,  before  5  o'clock  p.  m.  On  the  same  day,  between 
3  and  4  o'clock,  three  several  writs  of  foreign  attachment 
came  to  the  hands  of  the  constable  against  the  same  party, 
under  which  he  made  inventories  of  the  goods  and  chattels 
of  the  defendant  at  that  time.  Afterwards,  at  half-past  6 
o'clock  on  the  same  day,  sundry  other  writs  of  foreign 
attachment,  at  the  suit  of  other  creditors,  came  to  the 
hands  of  the  constable  against  the  defendant,  on  which  no 
inventories  were  made  until  after  half-past  7  o'clock  that 
evening.  It  was  admitted  that  the  constable  did  not  take 
any  of  the  goods  and  chattels  of  the  defendant  under  or 
by  virtue  of  any  of  the  writs  of  foreign  attachment  which 
came  to  his  hands,  unless  the  making  of  the  inventories 
under  those  writs  amounted  in  law  to  a  taking  of  the  same 
by  him,  and  that  he  never  had  them,  or  any  part  of  them, 
in  his  actual  possession  under  any  of  the  said  writs  of 
foreign  attachment. 

On  the  same  day  several  writs  of  execution,  at  the  suit  of 
different  parties  against  the  same  defendant,  amounting  in 
the  aggregate  to  over  seven  hundred  dollars,  came  to  the 
hands  of  the  sheriff,  the  first  at  6  o'clock  and  the  others  at 
half-past  7  o'clock  that  evening. 

The  plaintiffs  in  the  writs  of  foreign  attachment  after- 
wards, on  the  18th  of  March,  obtained  judgments  against 
the  defendant,  and  caused  executions  to  be  issued  thereon 
respectively,  upon  which  the  constable  sold  the  goods  and 
chattels  involved  in  the  question,  and  after  satisfying  the 
executions  first  above  mentioned,  there  was  a  balance  of 
$507.48  remaining  in  his  hands,  arising  from  the  sale;  and 
the  question  for  the  Court  was,  whether  this  balance  was 
applicable  to  the  foreign  attachments  in  the  hands  of  the 
constable,  and  could  bcretained  by  him  for  that  purpose, 
or  was  applicable  to  the  executions  in  the  hands  of  the 
sheriff? 


352  SUPERIOR  COURT. 

The  Court  said  that  an  execution  is  a  lien  upon  and  binds 
the  goods  of  the  defendant,  from  the  time  it  comes  to  the 
hands  of  the  sheriff;  a  writ  of  foreign  attachment  only 
from  the  taking  of  them  by  the  officer  under  it.  But  an 
actual  taking  into  his  exclusive  possession,  by  the  officer, 
was  not  necessary  under  either  writ.  The  making  of  an 
inventory  of  the  goods  by  the  officer  under  the  latter  writ, 
with  a  view  to  the  appraisement  of  them,  as  required  by 
the  act  of  Assembly  on  that  subject,  would  constitute  a 
taking  of  them  in  contemplation  of  law,  and  from  that 
time  the  goods  would  be  in  the  legal  custody  and  posses- 
sion of  the  constable  under  the  attachment,  and  he  was 
responsible  for  the  forthcoming  of  them,  to  be  levied  on 
and  sold  for  the  benefit  of  the  plaintiff  in  the  writ,  when 
judgment  should  be  obtained  upon  it.    Rev.  Code,  354. 

They  were  therefore  of  opinion  that  all  of  the  attach- 
ments on  which  the  constable  had  made  his  inventories  of 
the  goods  and  chattels  in  question,  prior  to  the  time  of  the 
executions  coming  to  the  hands  of  the  sheriff,  should  have 
the  preference  over  such  executions,  and  must  be  paid 
before  them,  out  of  the  proceeds  of  the  sale;  but  the  exe- 
cutions in  the  hands  of  the  sheriff  should  have  the  pre- 
ference over  all  the  other  attachments  in  the  hands  of  the 
constable,  and  should  be  first  satisfied  out  of  the  balance, 
so  far  as  it  would  go. 


Robert  Adkins  v.  James  B.  Jester. 

In  a  trial  before  a  justice  of  the  peace,  if  the  plaintiff  fails  to  attend, 
after  the  defendant  has  appeared  and  pleaded  a  sot-off,  the  justice  should 
enter  a  judgment  of  nonsuit  against  the  plaintiff,  and  not  a  judgment 
by  default  in  favor  of  the  defendant,  on  his  plea  of  set-off. 

Certiorari  to  Justice  Williamson.    The  record  showed 
that  the  action  was  on  account  for  £40.     On  the  first  day 


SHARP  v.  ARTHURS.  353 

appointed  for  trial  neither  party  appeared,  and  the  case  was 
adjourned  to  a  future  day,  when  the  defendant  appeared 
and  pleaded  a  set-off  for  $9.50,  and  the  case  was  again  ad- 
journed to  another  day,  when  the  plaintiff  having  again 
failed  to  attend,  the  justice,  after  hearing  the  allegations 
and  proofs  of  the  defendant,  adjourned  the  trial  to  another 
day,  and  then  rendered  judgment  by  default,  against  the 
plaintiff  and  in  favor  of  the  defendant,  for  $5.47  and  costs 
of  suit. 

The  error  assigned  was,  that  the  justice  should  have  en- 
tered a  judgment  of  nonsuit  against  the  plaintiff,  without 
hearing  the  allegations  and  proof  of  the  defendant  on  his 
plea  of  set-off.     And  of  this  opinion  was  the  Court. 

Judgment  reversed. 


Jesse  Sharp  v.  William  Arthurs. 

If  a  person  buys  goods  and  pays  for  them,  but  allows  another  to  take 
them  and  sell  them,  retaining  the  entire  profits  over  and  above  the 
original  cost  of  them,  for  his  own  benefit,  they  are  the  property  of  the 
purchaser,  and  are  not  liable  to  execution  process  against  the  party  re- 
ceiving and  selling  them. 

Replevin  for  three  carriages.  The  defendant  pleaded 
and  justified  the  taking  of  the  property  in  the  possession 
of  S.  M.  Mongar,  and  as  his  property,  as  a  constable,  under 
certain  writs  of  execution  against  him  at  the  suit  of  P.  B. 
Cooper.  For  the  plaintiff,  it  was  proved  that  it  was  his 
custom  to  buy  carriages  for  Mongar  to  sell,  and  to  allow 
him  all  the  profit  he  could  make  on  them,  for  the  purpose 
of  assisting  him  in  the  business,  as  his  credit  was  insuf- 
ficient to  enable  him  to  procure  them  without  the  plain- 
tiff's aid  and  friendship,  and  that  Mongar  had  made  known 
to    several   persons    the   fact   that   he    obtained   the   car- 


354  SUPERIOR  COURT. 


riages  he  was  selling  in  this  way  and  upon  these  terms, 
and  that  they  belonged  to  the  plaintiff.  Their  mode  of 
conducting  the  business  was  for  Mongar,  who  had  been  a 
carriage-maker,  to  go  round  and  select  from  the  carriage 
factories  in  Wilmington  such  vehicles  as  would  suit  his 
trade,  and  for  the  plaintiff  then  to  order  them  to  be  deliv- 
ered to  him,  and  to  pay  for  them,  which  he  sometimes  did 
on  the  delivery  of  them  to  Mongar,  and  sometimes  by 
giving  his  own  note  at  sixty  or  ninety  days  for  them ;  the 
only  object  of  the  plaintiff  being  to  befriend,  and  enable 
him  to  support  his  family  by  the  profits  arising  from  the 
sale  of  them,  and  to  prevent  his  creditors  from  seizing 
them  as  his  property.  On  the  other  hand,  the  defendant 
proved,  by  several  persons  who  had  purchased  carriages  of 
Mongar,  or  had  other  business  transactions  with  him,  that 
he  had  sold  them  as  his  own,  and  that  they  had  never 
heard  of  the  plaintiff's  having  any  interest  or  property  in 
them,  and  that  on  one  occasion  he  had  disposed  of  a  sulky 
in  payment  of  a  debt  due  from  him  personally;  and  by 
another  witness,  that  he  had  cashed  notes  for  him  to  a 
considerable  amount,  which  he  had  received  in  payment 
for  carriages  sold  by  him. 

The  counsel  for  the  plaintiff  cited  9  Johns,  197;  4  Waits 
£  Serg.  197;  2  U.  S.  Dig.  1848;  Story  on  Agency,  291. 

The  Court,  Harrington,  Ch.  J.,  charged  the  jury  :  That  the 
question  involved  in  the  case  was  solely  a  question  of  fact, 
to  be  determined  by  them  from  the  evidence  which  they 
had  heard.  If,  therefore,  they  were  satisfied  from  the1  evi- 
dence that  the  carriages  in  question  were  the  property  of 
the  plaintiff,  and  that  his  money  was  actually  paid  for 
them,  and  that  Mongar  was  merely  to  receive  and  sell 
them,  and  repay  the  plaintiff  the  original  cost  of  them,  re- 
taining the  profit  for  his  own  benefit  and  the  support  of 
his  family,  the  plaintiff  was  entitled  to  recover.  But  if 
they  should  believe,  from  the  facts  proved,  that  Mongar  in 
fact  paid  for  them,  or  was  to  pay  for  them  with  his  own 


WALRAVEN  v.  FRANK'S  ADMINISTRATOR.     355 

money,  or  out  of  the  money  accruing  from  the  sale  of 
them,  and  the  plaintiff's  name  was  only  used  to  obtain 
credit  with  the  makers  of  whom  they  were  purchased,  and 
to  prevent  their  seizure  by  Mongar's  creditors,  then  their 
verdict  should  be  for  the  defendant. 

Verdict  for  the  plaintiff. 
Smithers,  for  plaintiff. 

Ridgely,  for  defendant. 


Mary  Walraven  v.  Thomas  C.  Jones,  Administrator  of 
George  C.  Frank,  deceased. 

If  a  woman  enter  into  an  express  contract  to  cohabit  and  live  in  a  state 
of  fornication  with  a  man,  the  immorality  of  the  consideration  will 
vitiate  the  contract,  and  no  action  will  lie  upon  it  ;  and  in  an  action 
for  work  and  labor  as  a  servant  in  his  family,  if  it  be  proved  that  she 
lived  and  cohabited  with  him  as  his  mistress  and  concubine,  the  law 
will  imply  no  contract  or  promise  to  pay  for  her  services. 

Assumpsit  for  work  and  labor,  with  the  usual  pleas. 
The  proved  account  of  the  plaintiff  against  the  deceased 
was  for  work  and  labor,  as  a  domestic  servant  in  his  house- 
hold, for  a  period  of  twenty-seven  years,  four  months, 
and  twenty  days,  commencing  in  1828,  and  continuing  up 
to  the  time  of  his  death,  at  $3  per  week,  amounting  to 
$4272,  subject  to  a  credit  of  $750  ;  and  she  proved  that  she 
had  performed  service  as  such  in  his  family  during  the 
whole  of  that  period,  and  that  the  deceased  had  several 
times  declared,  and  a  short  time  before  his  death,  that  he 
had  provided  for  her  in  his  will, — that  he  had  left  the  farm 
on  which  he  lived,  worth  ten  or  twelve  thousand  dollars, 
to  her  for  her  life,  and  after  her  death  to  her  son  George 
in  fee  simple,  and  that  it  was  not  enough  for  her,  so  faith- 
ful and  attentive  had  she  been  to  his  interests  and  his 
wants;  but  no  will  of  his  could  he  produced  after  his 
death. 


356  SUPERIOR  COURT. 

The  evidence  for  the  defendant  was,  that  at  the  time 
when  the  plaintiff  first  entered  the  service  of  the  deceased, 
if  she  ever  was  in  his  employment  as  a  domestic  servant, 
on  wages,  he  was  a  married  man,  and  had  a  wife  and  seve- 
ral children  living  with  him  in  his  family,  and  that  an 
improper  intimacy  existed  between  him  and  the  plaintiff*, 
which  resulted  in  the  birth  of  a  child  by  him,  in  his  house, 
before  his  wife  left  it  and  went  to  reside  with  a  married 
daughter  in  Philadelphia,  and  after  she  left,  the  "plaintiff* 
continued  to  live  with  him  and  to  conduct  his  household 
affairs,  giving  birth  to  another  son  by  him  in  1830,  both 
of  whom  the  deceased  always  recognized  as  his  children, 
and  maintained  and  reared  up  as  such  on  the  farm  with 
him  on  which  they  lived,  and  that  she  had  continued  to  live 
and  cohabit  with  him  as  his  mistress  and  concubine  ever 
since,  up  to  the  time  of  his  death. 

McCaulley,  for  the  plaintiff*:  The  tenor  of  the  evidence 
adduced  on  the  part  of  the  defendant  sufficiently  discloses 
the  nature  of  the  defence  on  which  he  relies,  but  he  should 
insist,  notwithstanding  the  character  of  that  proof,  that 
when  one  person  performs  work  and  labor  for  another,  by 
his  request,  or  with  his  consent,  unless  they  were  near 
relations,  or  it  was  understood  between  them  that  no  com- 
pensation was  to  be  demanded  or  paid  for  it,  the  law  im- 
plied a  contract  and  promise  to  pay  for  the  work  and 
labor;  and  the  fact  that  the  parties  lived  together  in  a 
state  of  illicit  intercourse  and  cohabitation,  did  not  in  law 
preclude  the  right  of  the  plaintiff'  to  recover  for  such  ser- 
vices upon  the  implied  promise  to  pay  for  them.  As  to 
the  plea  of  the  statute  of  limitations,  it  was  a  settled  rule 
in  this  State,  that  a  slight  acknowledgment  of  the  exist- 
ence of  the  debt  was  sufficient  to  take  the  case  out  of  the 
operation  of  the  statute. 

Patterson,  for  the  defendant:  It  was  the  object  of  the 
law  to  protect  persons  in  the  enjoyment  and  recovery  of 
their  just  rights,  but  it  would  not  sanction  or  enforce  an 


WALRAVEN  v.  FRANK'S  ADMINISTRATOR.     357 

immoral  contract.  Ex  iurpe  causa,  non  oritur  actio,  wae  the 
maxim  that  applied  in  this  instance,  and  if  the  jury  were 
satisfied  that  the  plaintiff  and  the  deceased  lived  in  a  state 
of  unlawful  cohabitation,  during  the  time  of  the  alleged 
services  for  which  she  had  sued  his  estate,  the  law  would 
not  permit  her  to  recover  for  them,  even  if  they  were 
proved  to  have  been  performed  to  their  entire  satisfaction. 

James  A.  Bayard,  on  the  same  side :  The  facts  proved 
clearly  established  an  immoral  relation  subsisting  be- 
tween the  plaintiff  and  the  deceased,  George  C.  Frank,  in 
his  lifetime,  and  that  she  resided  as  his  acknowledged 
mistress  or  concubine  in  his  family  during  the  whole  time 
she  lived  with  him,  and  during  the  whole  period  covered 
by  her  alleged  services.  But  was  the  fact  proved,  that  she 
had  had  a  will  drawn  for  him,  by  which  he  was  to  give  all 
his  property  in  Delaware  to  her  children  by  him,  which 
was  equal  to  his  property  in  Philadelphia,  which  was  by 
the  same  will  to  go  to  his  legitimate  children,  at  all  con- 
sistent or  reconcilable  with  the  idea  that  she  was  in  his 
family  as  a  servant  merely,  on  wages,  at  any  price  what- 
ever? As  to  the  general  principle  in  regard  to  services 
rendered  by  one  to  another,  unless  in  the  case  of  near  re- 
lations, the  law  presumes  that  they  were  rendered  in  vir- 
tue of  an  agreement  between  them  for  that  purpose,  or  in 
other  words,  the  law  implies  a  contract  and  promise  to 
pay  for  them.  But  such  was  not  the  case,  if  the  contract 
was  vitiated  or  in  any  manner  affected  by  an  immoral 
consideration,  and  even  if  part  of  the  contract  was  illegal ; 
as,  if  it  was  a  part  of  the  condition  of  her  service  that  she 
was  to  cohabit  with  him,  it  will  taint  the  whole  and  defeat 
the  action.  27  Eng.  C.  L.  Ji.  534.  If  a  woman  expressly 
agrees  to  serve  a  man  and  cohabit  with  him,  the  contract  is 
void,  and  no  action  will  lie  upon  it  :  20  Eng.  C.  L.  U.  508  ; 
41  Idem,  o'2'l ;  and,  a  fortiori,  if  the  plaintiff  relies  on  an  im- 
plied contract  to  recover,  and  it  is  shown  that,  in  addition 
to  the  service,  the  plaintiff  cohabited  as  a  concubine  with 
the   party  sought  to    be  charged  for   the   service,  the    law 


358  SUPERIOR  COURT. 

will  not  imply  any  contract  to  pay  for  the  service,  because 
it  is  vitiated  by  the  immoral  relation  subsisting  between 
them.  No  acknowledgment  of  a  subsisting  demand,  such 
as  had  been  uniformly  required  under  the  ruling  in  this 
State,  had  been  proved,  to  take  the  case  out  of  the  opera- 
tion of  the  statute  of  limitations. 

McCaidley,  in  reply,  would  admit  that  an  express  con- 
tract for  cohabitation  was  void;  and  would  also  admit  that, 
where  it  was  a  part  or  one  of  the  conditions  of  an  express 
contract  for  service,  the  rule  was  the  same.  But  such  was 
not  the  proof  in  this  case.  In  the  absence  of  any  express 
contract,  however,  either  in  relation  to  the  cohabitation 
or  the  service,  indebitatus  assumpsit  will  lie  for  the  work  and 
labor  performed,  on  the  implied  promise  to  pay  for  that; 
notwithstanding  it  may  be  shown  that  the  plaintiff',  in 
addition  to  the  service,  in  point  of  fact  did  cohabit  with 
the  defendant,  for  which,  however,  no  demand  is  made, 
and  no  cause  of  action  is  asserted  in  the  case;  for  the 
cohabitation  being  no  part  of  the  contract,  or  of  the 
consideration  for  it,  will  not  taint  or  vitiate  the  implied 
contract  to  pay  for  the  service  merely. 

The  Court,  Wootien,  J.,  charged  the  jury:  You  are  already 
aware  that  this  action,  ordinarily  called  an  action  of  as- 
sumpsit, was  instituted  by  Mary  Walraven,  the  plaintiff, 
against  Thomas  C.  Jones,  the  administrator  of  George  C. 
Frank,  deceased,  with  the  view  of  recovering  compensa- 
tion for  services  alleged  to  have  been  rendered  by  her,  as 
a  hired  woman  or  servant  to  the  deceased,  in  his  lifetime, 
commencing  on  the  14th  of  January,  1828,  and  running 
down  to  the  4th  of  June,  1855,  covering  a  period  of  twenty- 
seven  years,  four  months,  and  twenty  days,  at  $8  per 
week,  amounting  in  the  aggregate  to  the  sum  of  $4272.66, 
subject  to  a  credit  of  #750. 

To  the  plaintiff's  claim,  the  defendant,  through  his 
counsel,  sets  up  three  several  and  distinct  matters  of  de- 
fence. 


WALRAVEN  v.  FRANK'S  ADMINISTRATOR.     359 

1.  That  the  plaintiff,  Mary  Walraven,  stood  in  the  rela- 
tion of  a  mistress  to  George  C.  Frank,  and  lived  in  a  state 
of  cohabitation  with  him,  and  is  not,  therefore,  entitled  to 
recover  for  services  rendered  during  the  continuance  of 
such  connection,  because  of  the  immorality  and  illegality 
of  the  relation  in  which  they  lived.  2.  That  the  money 
which  she  acknowledges  already  to  have  received  amounts 
to  more  than  her  services  were  worth.  And,  3.  The  act  of 
limitations. 

The  first  branch  of  the  defence  renders  the  relation  in 
which  these  parties,  Mary  Walraven  and  George  C.  Frank, 
stood  to  each  other,  a  very  important  fact  to  be  determined 
by  you  in  the  consideration  of  this  case. 

If  she  lived  with  him  in  the  character  and  capacity  of  a 
hired  woman  or  servant,  for  the  purpose  of  performing 
the  ordinary  and  legitimate  duties  and  services  of  a  house 
girl  or  servant,  and  did  actually  perform  such  services  in 
and  about  his  house,  the  law  implied  a  contract,  and 
raises  a  promise,  on  the  part  of  George  C.  Frank,  to  pay 
her  what  her  services  were  reasonably  worth.  In  the 
absence  of  any  express  contract,  the  law  presumes  such  a 
contract,  and  implies  a  promise  to  pay,  from  the  fact  that 
services  were  rendered. 

If  the  jury  should  be  of  opinion,  therefore,  from  the  evi- 
dence in  the  cause,  that  the  plaintiff  lived  in  and  about  the 
house  of  George  C.  Frank  in  the  character  and  capacity  of  a 
hired  woman  or  servant,  and  as  such  rendered  services  to 
him,  she  is  entitled  to  recover  a  fair  and  reasonable  compen- 
sation for  them,  to  be  ascertained  by  you  from  the  evidence 
in  the  cause;  but  in  estimating  these  services,  you  will 
consider  the  payment  or  credit  of  S7o0,  which  she  acknow- 
ledges to  have  received;  having  regard,  however,  to  what 
I  shall  hereafter  say  to  you  in  reference  to  the  statute  of 
limitations,  which  is  relied  on  by  the  defendant  as  a  dis- 
tinct branch  of  defence,  and  as  a  bar  to  this  action. 

But  if  you  should  be  of  opinion  that  the  plaintiff,  Mary 
Walraven,  did  not  live  with  George  C.  Frank  in  the  char- 


360  SUPERIOR  COURT. 

acter  and  capacity  of  a  hired  woman  or  house  servant,  but 
that  she  lived  there  as  his  mistress,  in  a  state  of  cohabita- 
tion with  him,  the  law — which  discountenances  immorality 
in  all  its  forms  and  phases,  and  especially  of  such  a  charac- 
ter as  that  which  is  attributed  to  these  parties — refuses  its 
sanction  to  any  undertaking  founded  upon  an  immoral 
and  illegal  consideration,  and  will  not,  therefore,  presume 
a  contract  in  the  absence  of  an  express  one;  nor,  indeed, 
would  it  enforce  an  express  contract  founded  upon  such  an 
immoral  and,  consequently,  illegal  consideration. 

If,  therefore,  the  plaintiff  stood  in  the  relation  of  a  mis- 
tress to  George  C.  Frank,  and  not  as  a  hired  woman  or 
servant,  she  is  not  entitled  to  recover,  although  she  may 
have  rendered  services  in  and  about  his  house. 

Every  contract,  whether  it  be  express  or  implied,  must 
have  a  valuable  and  legal  consideration;  and  the  policy  of 
the  law,  which  holds  all  contracts,  either  express  or  im- 
plied, based  upon  immoral  considerations,  null  and  void, 
is  founded  in  good  sense  and  wisdom.  Hence  it  is  that 
services,  rendered  by  a  hired  servant,  constitute  a  good 
consideration  to  support  an  action  for  the  value  of  the  ser- 
vices, upon  an  implied  contract,  in  the  absence  of  an 
express  one,  upon  proof  of  the  service ;  and  that  the  con- 
sideration of  a  woman's  living  with  a  man  as  his  mistress, 
in  a  state  of  cohabitation  with  him,  is  not  a  sufficient  con- 
sideration to  support  an  action  for  services. 

These  are  the  principles  of  law  applicable  to  the  case, 
and  it  is  now  for  you  to  apply  the  law,  as  we  have  an- 
nounced it  to  you,  to  the  facts,  and  then  determine  in 
what  relation  the  plaintiff  lived  with  George  C.  Frank. 
If  she  lived  with  him  in  the  character  and  capacity  of  a 
hired  woman  or  servant,  she  is  entitled  to  recover  such 
compensation  as  her  services  were  reasonably  worth.  Hut 
if  she  lived  with  him  as  his  mistress,  in  a  state  of  co- 
habitation with  him,  she  is  not  entitled  to  recover  any- 
thing, either  upon  an  express  or  implied  contract;  for,  as 
I  have  before  said  to  you,  the  law  does  not  recognize,  but 


WALKAVEN  v.  FRANK'S  ADMIN  ISTKATOR.     361 

makes  absolutely  null  and  void  all  contracts  tending  to 
promote  fornication  and  prostitution. 

If,  however,  upon  a  proper  application  of  the  facts  proved 
before  you,  to  the  law  as  already  stated,  in  your  judgment 
she  is  entitled  to  recover,  then  the  next  matter  for  you  to 
consider  will  be,  for  what  length  of  time,  and  the  amount. 
The  time  is  to  be  measured  by  the  act  of  limitations,  and 
the  amount,  by  the  evidence  in  the  cause  of  the  value  of 
the  services  Tendered,  and  not  barred  by  the  act. 

The  statute  of  limitations  applies  to  the  whole  period  of 
time  for  which  the  services  are  claimed  to  have  been  ren- 
dered, except  the  three  years  immediately  preceding  the  in- 
stitution of  the  suit.  But  for  any  services  rendered  with- 
in those  three  years,  the  statute  would  not  operate  as  a  bar, 
and  she  would  be  entitled  to  recover,  so  far  as  the  act  of 
limitations  is  concerned,  or  in  other  words,  if  she  is  entitled 
to  recover  at  all,  such  sum  as  the  services  so  rendered  were 
worth,  over  and  above  the  $750,  which  she  has,  according 
to  her  own  admission,  already  received ;  but  if  the  amount 
which  she  has  received  is  fully  equal  to,  or  more  than  the 
amount  of  the  services  rendered  within  the  three  years, 
then  she  is  not  entitled  to  recover  anything. 

You  will  perceive  now,  gentlemen,  that  the  plaintiff's 
right  of  recovery  depends  entirely  upon  the  relation  in  which 
she  stood  to  George  C.  Frank.  If  in  that  of  a  hired  woman 
or  servant,  she  would  be  entitled  to  recover  something, 
provided  she  has  not  already  received  adequate  remunera- 
tion, to  be  determined  by  the  evidence  and  rules  of  law 
applicable  to  the  case.  But  if  she  bore  the  relation  of  a 
mistress,  and  cohabited  with  him  as  such,  she  is  not  en- 
titled to  recover  at  all,  and  your  verdict  should  be  for  the 
defendant. 


24 


362  STJPEKIOK  COUKT. 


The  Mayor  and  Council  of  Wilmington,  for  the  use  of 
Kiliam  Rupp,  v.  James  Kearns  -and  Joseph  Pyle. 

Judgment  by  default  for  want  of  appearance,  and  an  inquisition  held 
thereon  set  aside  after  the  lapse  of  two  terms,  for  want  of  a  sufficient 
return  to  the  summons  by  which  the  suit  was  commenced.  But  leave 
granted  to  amend  the  return  on  payment  of  costs  and  allowing  the  de- 
fendants to  enter  their  appearance  forthwith. 

This  was  a  motion  to  set  aside  a  judgment  and  an  inqui- 
sition thereon,  because  it  did  not  appear  by  the  return  of 
the  sheriff  that  the  defendants  had  been  duly  summoned,  as 
the  time  and  manner  of  the  service  of  the  writ  were  not 
stated  in  the  return.  The  suit  was  instituted  to  May  Term, 
1856,  by  a  writ  of  summons  in  debt,  to  which  the  sheriff 
made  return  of  summoned  merely,  on  which  the  plaintiffs 
filed  their  narr  to  that  term,  and  obtained  judgment  by  de- 
fault for  want  of  appearance  of  the  defendants,  and  after- 
wards sued  out  a  writ  of  inquiry  during  vacation  to  ascer- 
tain the  amount. 

Gordon,  for  the  defendants,  now  moved  to  set  aside  the 
judgment  and  inquisition  on  the  grounds  above  stated,  and 
cited  Rev.  Code,  368. 

Patterson,  for  the  plaintiffs,  objected,  that  after  the  lapse 
of  two  terms  the  motion  to  set  aside  the  judgment  was  too 
late,  and  that  it  should  have  been  made  at  or  before  the 
next  term  after  it  was  rendered,  and  that  the  application 
should  not  be  sustained  without  an  affidavit  of  the  defen- 
dants, denying  notice  of  the  suit  and  alleging  a  just  and 
legal  defence  to  the  action. 

The  Court,  however,  was  of  opinion,  that  the  provisions 
of  the  statute  in  regard  to  affidavits  of  defence  had  relation 
only  to  cases  in  which  the  return  of  the  sheriff  to  the  Sum- 
mons was  in  conformity  with  the  provisions  of  the  act  in 
regard  to  the  service  of  the  writ,  which  required  the  officer 


BURCALOW  v.  TRUMP.  363 

to  state  whether  it  was  served  personally  on  the  defendants 
or  by  a  copy  left  at  their  usual  place  of  abode,  in  the  pre- 
sence of  some  white  adult  person,  six  days  before  the  return 
thereof.  Rev.  Code,  368.  And  without  such  a  return,  no 
judgment  by  default  for  want  of  an  appearance  of  the  de- 
fendants could  properly  be  entered. 

Judgment  and  inquisition  set  aside. 

The  counsel  for  the  plaintiff  then  asked  for  leave  to  the 
sheriff  to  amend  his  return,  which  the  Court  granted,  on 
condition  that  the  defendants  should  be  allowed  to  enter 
their  appearance  on  the  amended  return  at  this  term,  and 
on  payment  of  costs. 


Farrington  Burcalow  v.  Isaac  V.  Trump. 

A  foreign  attachment  will  lie  against  a  non-resident,  notwithstanding  he 
was  temporarily  in  the  State  at  the  time  when  it  was  issued. 

Foreign  attachment  case  and  motion  to  quash  the  writ, 
because  the  defendant,  although  his  residence  was  in  New 
Jersey,  was  in  this  State  at  the  time  it  was  issued.  The 
proof  showed  that  the  defendant  resided  in  New  Jersey, 
but  was  in  New  Castle  County  on  the  day,  and  for  several 
days  before  and  after,  the  writ  was  issued. 

Whitely,  in  support  of  the  motion,  argued,  that  as  the 
main  object  of  a  writ  of  foreign  attachment  is  to  compel 
the  appearance  of  a  foreign  debtor,  out  of  the  jurisdiction 
of  the  court  and  beyond  the  limits  of  the  State,  it  could 
not  properly  or  lawfully  issue  against  a  non-resident,  who 
was  at  the  time  in  the  State  and  within  reach  of  the  usual 
and  ordinary  process  of  the  Court. 

But  (he  Court,  Wootten,  J.,  dissenting,  were  of  a  different 
opinion,  and  discharged  the  rule  to  show  cause,  &c.     The 


364  SUPEEIOE  COUET. 

whole  question  depends  under  the  words  of  the  act,  upon 
the  residence  of  the  party  at  the  time.  If  the  party  resides 
out  of  the  State  at  the  time  when  the  foreign  attachment 
is  issued,  he  is  amenable  to  the  process,  notwithstanding 
he  may  have  been  temporarily  in  the  State  at,  before,  and 
after  that  time.  Such,  we  think,  is  the  construction  which 
the  words  of  the  act  require,  and  we  have  no  discretion 
over  it. 


Daniel  Waters,  defendant  below,  Appellant,  v.  James  H. 
and  Andrew  Kirby,  plaintiffs  below,  Respondents. 

An  appeal  from  a  justice  of  the  peace  will  not  be  dismissed,  because  his 
certificate  to  the  transcript  states  merely  that  "the  foregoing  is  a  true 
transcript  in  the  above  case  copied  from  my  docket;"  but  the  same  may 
be  amended. 

On  appeal  from  a  justice  of  the  peace.  The  certificate  of 
the  justice  appended  to  the  copy  of  the  docket  entries  sent 
up  by  him  was  as  follows  :  "  The  foregoing  is  a  true  trans- 
cript in  the  above  case  duly  copied  from  my  docket," 
signed  by  the  justice. 

Patterson,  for  the  plaintiff  below,  moved  to  dismiss  the 
appeal  for  the  want  of  a  proper  certificate  by  the  justice  of 
"  all  the  docket  entries  in  the  case  before  him,"  as  the 
statute  requires. 

Booth,  for  the  defendant  below :  The  motion  to  dismiss 
the  appeal  is  too  late,  as  the  plaintiffs  have  appeared  to  the 
citation  and  filed  their  pronarr  in  the  case.  But,  if  I  am 
wrong  in  this,  it  is  not  too  late  to  amend  the  certificate, 
and  ask  leave  for  the  justice  to  do  so.  Green  v.  Kinney,  2 
Harr.  160 ;  Lewis  v.  Hazel,  4  Harr.  470. 

77*c  Court  refused  to  dismiss  the  appeal,  and  gave  leave 
to  the  justice  to  amend  his  certificate,  upon  the  ruling  in 
the  case  of  Green  v.  Kinney,  2  Harr.  160. 


COURT  OF  ERRORS  AND  APPEALS. 

JUNE    TERM, 
1857. 


Doe  d.  "William  P.  Cooper  v.  Brickus  Townsend  and 
Saulsbury  Dean,  Tenants  in  possession,  and  Ignatius 
T.  Cooper,  real  Defendant. 

The  testator  by  his  will  devised  to  each  of  his  five  children  by  name, 
portions  of  his  real  estate  in  severalty  for  life,  remainder  to  the  children 
of  each  in  tail,  in  the  parts  so  devised  to  his  children,  subject  to  the 
proviso,  that  if  any  one  or  more  of  his  said  children  should  die  without 
leaving  lawfully  begotten  child  or  children,  then  he  gave  and  devised 
the  lands  and  premises  so  devised  to  such  child  or  children  as  should 
happen  to  die  as  aforesaid,  unto  the  survivor  or  survivors  of  his  said 
children,  during  their  natural  life,  and  after  their  decease,  he  gave  and 
devised  the  lands  and  premises  as  aforesaid  to  the  child  or  children  of 
such  survivor  or  survivors  lawfully  begotten  of  their  bodies  forever  of 
any  of  his  children  who  might  be  dead  leaving  such  child  or  children, 
such  child  or  children  claiming  such  part  or  share  as  the  parent  or 
parents  of  such  child  or  children  would  have  claimed  if  living,  to  be 
equally  divided  between  his  surviving  child  or  children  as  aforesaid, 
and  the  child  or  children  of  any  that  may  be  dead,  claiming  the  right 
of  their  parent  or  parents  as  if  living,  share  and  share  alike,  as  tenants 
in  common,  and  not  as  joint  tenants,  and  to  the  respective  heirs  as 
aforesaid  forever  ;  and  he  further  provided  that  it  was  his  will,  desire, 
and  intention,  that  if  the  whole  of  his  children  should  die  without 
leaving  lawful  child  or  children,  or  legal  descendants  of  such  child  or 
children,  so  that  the  whole  of  the  lawful  issue  of  his  own  body  should 
become  extinct,  then  and  in  such  a  case  he  devised  the  remainders  and 
reversions  of  his  whole  estate  over  to  other  persons.  The  lessor  of  the 
plaintiff  was  the  son  and  only  child  of  Richard,  a  deceased  son  of  the 
testator.      William  II.,  another  son  of  the  testator,  died  without  leaving 


366     COUKT  OF  ERRORS  AND  APPEALS. 

lawful  issue,  leaving  his  brother  Ignatius  T.  to  survive  him,  and  who 
was  now  the  sole  survivor  of  the  testator's  five  children  and  original 
devisees;  and  this  action  was  brought  by  William  T.,  the  son  of 
Richard,  against  Ignatius  T.,  to  recover  his  share  of  the  lands  and  pre- 
mises devised  by  the  testator  to  his  son  William  H.  Held,  that  the 
lands  and  premises  devised  to  William  H.  by  the  testator,  on  his  death 
without  leaving  children  lawfully  begotten  of  his  body,  under  the  limi- 
tations of  the  will,  survived  to  Ignatius  T.,  the  sole  surviving  child  of 
the  testator,  for  the  term  of  his  life,  and  that  the  plaintiff  could  not  re- 
cover. 
The  words  "survivor  or  survivors,"  do  not  mean  other  or  others;  and 
were  not  to  be  so  construed  in  a  devise  of  this  nature. 

This  was  an  action  of  ejectment,  which  came  up  from 
the  Superior  Court  for  Kent  County,  upon  a  case  stated, 
by  consent  of  counsel,  and  on  questions  of  law  reserved  for 
hearing  before  the  Court  in  bank,  which  were  as  follows  : 

Richard  Cooper,  late  of  Kent  County,  deceased,  was,  at 
the  time  of  making  his  last  will  and  testament  hereinafter 
mentioned,  and  at  the  time  of  his  decease,  seized  of  an  es- 
tate in  fee  simple,  in  possession,  in  the  lands  and  premises 
in  his  said  last  will  and  testament  mentioned  and  devised, 
and  possessed  of  the  personal  estate  therein  and  thereby 
bequeathed. 

The  said  Richard  Cooper,  on  the  23d  day  of  January, 
A.  D.  1816,  duly  made  and  executed  his  said  will,  and  on 
the  22d  day  of  July,  1816,  duly  made  and  executed  the 
first  codicil,  and  on  the  27th  day  of  October,  1817,  duly 
made  and  executed  the  second  codicil  thereto,  as  by  the 
said  will  and  the  several  codicils  thereto  respectively  ap- 
pears. The  said  Richard  Cooper  died  on  or  about  the 
1st  day  of  September,  1818,  without  having  revoked  or 
altered  his  said  will,  or  either  of  the  said  codicils,  and 
leaving  to  survive  him  his  widow,  Clarissa  Cooper,  and  the 
five  children,  Ezekiel,  Sarah,  Richard  J.,  Ignatius  T.,  and 
William  II.,  named  in  the  said  will,  as  his  only  children 
and  heirs-at-law;  of  whom  Ezekiel  and  Sarah  were  the 
children  by  a  former  marriage,  and  were  each  married, 
and  had  issue  then  living.  Richard  J.,  Ignatius  T.,  and 
William  II.,  the  children  of  the  testator  by  Clarissa,  the 


DOE  d.  COOPER  v.  TOWNSEND  et  al.  367 

widow,  were  minors,  then  about  the  ages  of  nine,  eleven, 
and  thirteen  years,  respectively.  After  the  death  of  the 
testator,  the  said  original  will  and  codicils  were  duly  proven 
and  allowed  by  the  Register  of  Wills  in  and  for  Kent 
County ;  which  said  will  and  codicils  are  made  a  part  of 
this  case  stated,  proul  the  same.  Ezekiel  Cooper,  one  of 
the  children  of  the  testator,  died  on  the  21st  day  of  Sep- 
tember, A.  D.  1828,  leaving  issue  Richard  A.,  Ezekiel, 
Henrietta,  and  Andrew  B.,  of  whom  Henrietta  and  Eze- 
kiel are  since  dead  without  issue.  Sarah,  another  of  the 
testator's  children,  who,  at  the  time  of  the  testator's  death, 
was  intermarried  with  Charles  Buckmaster,  died  in  the 
year  1830,  leaving  to  survive  her  three  children,  to  wit, 
Sarah  Ann,  Ezekiel,  and  Charles,  her  only  heirs-at-law, 
who  as  far  as  is  known  are  all  still  living.  Richard  J., 
another  of  the  testator's  children  above  named,  died  in  the 
year  1835,  leaving  to  survive  him  William  P.  Cooper,  the 
plaintiff,  his  only  child  and  heir-at-law.  William  H., 
another  of  the  testator's  children  above  named,  died  in 
August,  1847,  without  issue.  Ignatius  T.,  the  only  re- 
maining child  of  the  testator,  the  real  defendant  in  this 
case,  is  still  living,  having  issue. 

The  lands  devised  to  the  said  William  II.  Cooper,  in 
and  by  the  sixth  item  of  the  said  original  will,  and  in 
which  the  plaintiff' in  this  case  claims  an  undivided  interest 
in  possession,  were  held  by  the  said  William  H.  during  his 
life,  and  are  now  held  by  the  tenants  in  possession  under 
the  said  Ignatius  T.,  the  real  defendant  in  this  case. 

Whereupon,  on  the  application  of  both  parties  by  their 
counsel,  the  said  Superior  Court  direct  the  following  ques- 
tion of  law  to  be  heard  by  the  Court  of  Errors  and  Appeals, 
viz.,  whether  the  said  William  F.  Cooper,  the  plaintiff, 
has  any,  and  if  any,  what  estate  in  possession  in  the  lands 
and  premises  devised  as  above  by  the  testator  in  the  sixth 
item  of  the  said  original  will,  to  his  son  William  II.,  and 
held  under  said  will  by  the  said  William  II.  during  his 
life? 

If  the  Court  of  Errors  and  Appeals  shall  be  of  opinion, 


368     COURT  OF  ERRORS  AND  APPEALS. 

on  the  above  facts  and  the  whole  of  said  will  and  codicils, 
that  the  said  "William  P.  Cooper,  the  plaintiff,  has  any 
estate  in  possession  in  the  lands  and  premises  so  as  above 
devised  to  the  said  William  H.  Cooper,  and  by  him,  the 
said  William  H.,  held  during  his  life,  as  above  stated,  then 
judgment  shall  be  rendered  by  the  said  Superior  Court  in 
favor  of  the  plaintiff,  for  such  part  thereof  as  the  Court  of 
Errors  and  Appeals  shall  be  of  opinion  that  the  said  plain- 
tiff is  entitled  to  in  possession.  But  if  the  said  Court  of 
Errors  and  Appeals  shall  be  of  opinion  that  the  said  Wil- 
liam P.  Cooper  is  not  entitled  to  any  estate  in  possession 
in  the  said  lands  and  premises,  so  as  aforesaid  devised  to 
the  said  William  H.  Cooper,  that  then  the  said  Superior 
Court  shall  render  judgment  for  the  defendant. 

The  following  clauses  of  the  will  were  submitted  as  a 
part  of  the  case  stated: 

First.  The  testator  devises,  in  the  6th  item  of  his  will, 
to  each  of  his  five  children,  by  name,  certain  portions  of 
his  real  estate,  in  severalty,  for  life  only,  remainder  to  the 
children  of  each,  in  tail,  in  the  parts  so  devised. 

"  Item  7th.  Provided,  nevertheless,  in  case  any  one  or 
more  of  my  said  children  should  happen  to  die  without 
leaving  child  or  children,  lawfully  begotten  of  their  bodies, 
that  can  take  and  hold  my  real  estate,  as  my  immediate 
devisees,  agreeable  to  the  true  intent  and  meaning  of  this 
my  will,  then,  in  such  case,  I  give  and  devise  the  lands  and 
premises  above  devised  to  such  child  or  children  which 
may  or  shall  happen  to  die  as  aforesaid,  unto  the  survivor 
or  survivors  of  my  said  children,  during  their  natural  life; 
and  after  their  decease,  I  give  and  devise  the  lands  and 
premises,  as  aforesaid,  to  the  child  or  children,  both  males 
and  females  respectively,  of  such  survivor  or  survivors, 
lawfully  begotten  of  their  bodies,  forever,  of  any  of  my 
children,  which  may  be  dead,  leaving  such  child  or  chil- 
dren, such  child  or  children  claiming  such  part  or  share  as 
the  parent  or  parents  of  such  child  or  children  would  have 
claimed,  if  living,  to  be  equally  divided  between  my  sur- 
viving child  or  children  as  aforesaid,  and  the  child  or  chil- 


DOE  d.  COOPEE  v.  TOWNSEND  et  al.  369 

dren,  lawfully  begotten,  of  any  that  may  be  dead,  claim- 
ing the  right  of  their  parent  or  parents,  as  if  living,  share 
and  share  alike,  as  tenants  in  common,  and  not  as  joint 
tenants,  and  to  the  respective  heirs,  as  aforesaid,  forever. 
And  it  is  further  provided,  and  it  is  my  will,  and  desire, 
and  intention,  that  if  the  whole  of  my  children  should  die 
without  leaving  lawful  child  or  children,  or  legal  descen- 
dants of  such  child  or  children,  so  that  the  whole  of  the 
lawful  issue  of  my  own  body  should  become  extinct,  then 
and  in  such  case,  I  give  and  devise  the  remainder  and  re- 
mainders, reversion  and  reversions,  of  my  whole  estate,  in 
the  manner  and  form  following,"  &c. 

The  testator  then  devises  over ;  and  after  the  above  de- 
vises over,  the  testator  declares  as  follows  : 

"  Item  8th.  Be  it  known,  that  it  is  my  express  intention, 
in  this  my  will,  to  create  and  establish  cross-remainders, 
on  and  in  the  aforesaid  estates,  lands,  and  premises,  among 
my  several  and  respective  children,  and  their  children 
lawfully  begotten,  so  that  my  children  and  their  children, 
as  aforesaid,  shall  inherit  so  long  as  any  of  them  remain." 

The  testator  then  bequeaths  certain  personal  estate  spe- 
cifically, as  follows : 

"  Item.  I  give  and  bequeath  to  my  five  children  afore- 
said, Ezekiel,  Sarah,  Richard,  Ignatius,  and  William,  all 
my  bank  stock  in  the  Farmers'  Bank  of  Delaware;  that  is 
to  say,  twenty  shares  to  each  and  every  one  of  them.  Also, 
my  bank  stock  in  the  Bank  of  Caroline,  in  Caroline  County 
and  State  of  Maryland,  from  and  after  the  marriage  or 
death  of  my  wife  Clarissa;  that  is  to  say,  to  each  and  to 
every  one  of  them,  severally,  the  number  of  ten  shares, 
together  with  all  the  proceeds,  dividends,  and  profits 
thereof.  I  also  give  and  bequeath  to  each  and  every  one 
of  my  aforesaid  five  children,  severally  and  respectively, 
the  sum  of  twelve  hundred  and  fifty  dollars  as  a  legacy, 
on  the  following  terms  and  conditions;  that  is  to  say: 
That  each  of  them,  for  him  and  herself,  severally,  shall 
marry,  and  have  child,  or  children,  lawfully  begotten,  at 
the  time  of  their  death;  but  in  case  any  one  or  more  of 


370     COUET  OF  ERRORS  AND  APPEALS. 

my  said  children  should  die,  leaving  no  child  or  children, 
or  lawful  descendants,  at  the  time  of  their  decease,  that 
then  and  in  such  case,  the  bank  stock  and  legacy  be- 
queathed, as  aforesaid,  to  such  child  or  children  so  dying 
as  aforesaid,  shall  go  over  and  be  equally  divided  to  and 
amongst  the  survivor  or  survivors  of  my  said  children." 

Then  follows  the  residuary  clause : 

"  Item.  I  hereby  give,  devise,  and  bequeath  all  the  rest 
and  residue  of  my  real  and  personal  estate  whatsoever,  to 
be  equally  divided  to  and  among  my  five  children,  Ezekiel, 
Sarah,  Richard,  Ignatius,  and  William,  share  and  share 
alike ;  or  if  any  one  or  more  of  my  said  children  should 
happen  to  die  without  leaving  children  of  their  own  bodies 
lawfully  begotten,  then  in  such  case  the  share  or  shares  of 
such  child  or  children  deceased,  together  with  the  afore- 
said legacies  to  such  child  or  children  deceased,  shall  go  to 
the  survivor  or  survivors  of  my  said  children ;  to  be  equally 
divided,  share  and  share  alike;  and  if  all  my  said  children 
should  happen  to  die,  without  leaving  of  their  own  bodies, 
as  aforesaid,  heirs,  and  in  such  case,  I  give  and  bequeath 
unto  my  beloved  wife,  Clarissa,  five  thousand  dollars  of 
the  aforesaid  residue,"  &c,  &c,  &c. 

Dated  23d  January,  1816. 

Then  occurs  the  following  clause,  contained  in  a  codicil 
dated  July  22d,  1816. 

"  I  do  also  declare,  that  it  is  my  intention  and  will,  that 
the  whole  of  my  estate,  both  real  and  personal,  shall  go  to 
and  be  divided  to  and  amongst  my  children  and  the  lawful 
issue  of  their  respective  bodies,  so  long  as  any  of  them  shall 
remain;  and  that  no  other  person,  in  remainder,  shall  take 
or  inherit  any  part  thereof,  so  long  as  any  of  my  children 
or  their  lawful  issue  shall  survive."  And  the  following, 
contained  in  codicil  No.  2,  dated  October  27th,  1817: 

"I  give  and  bequeath  to  my  five  children,  one  hundred 
and  two  shares  of  stock,  in  the  Jiank  of  Caroline,  which  1 
purchased  since  the  making  of  my  original  will,  to  be 
divided  in  the  following  manner,  viz.:  To  Kzekiel,  twenty 
shares;  to  Sarah,  twenty  shares;  to  Richard  Jenifer, twenty- 


DOE  d.  COOPER  v.  TOWNSEND  et  al.  371 

two  shares;  to  Ignatius  Taylor  Cooper,  twenty  shares;  to 
William  Hughlitt  Cooper,  twenty  shares;  and  also  to  each 
and  every  of  them,  severally,  an  additional  cash  legacy, 
over  and  above  the  cash  legacy  left  to  each  of  them  in  my 
original  will,  the  sum  of  seven  hundred  and  fifty  dollars, 
each,  to  be  paid  to  them  in  good  bonds,  subject  neverthe- 
less to  the  like  limitations,  restrictions,  conditions,  as  are 
mentioned  in  my  original  will,  in  case  of  either  of  my  said 
children  dying  and  leaving  no  children,  relative  to  bank 
stock  and  cash  legacies,  therein  mentioned. 

Ridgely,  for  the  plaintiff,  read  the  sixth,  seventh  and 
eighth  items  of  the  will,  and  the  clause  extracted  from  the 
codicil  of  the  22d  of  July,  1816,  and  asked  for  the  con- 
struction of  the  same.  Of  the  five  children  and  original 
devisees  of  the  testator,  severally  named  in  the  sixth  item 
of  his  will,  Ignatius  T.  Cooper,  the  real  defendant,  is  now 
the  sole  survivor,  and  is  by  his  tenants  in  possession  of  the 
premises  in  controversy,  and  asserts  a  claim  to  the  whole 
of  them  under  the  limitations  of  the  will,  for  the  term  of 
his  life  at  least,  as  such  survivor.  These  lands  and  pre- 
mises were  that  portion  of  the  testator's  real  estate  which 
were  devised  by  the  testator,  in  the  sixth  item  of  the  will, 
to  his  son  "William  II.  Cooper,  in  severalty  for  life,  re- 
mainder to  his  children  in  tail,  subject  to  the  proviso  con- 
tained in  the  seventh  item  of  the  will.  William  II. 
Cooper  died  without  leaving  children  lawfully  begotten, 
and  the  question  which  we  are  to  consider  is,  what  is  the 
meaning  of  the  words  "  survivor  or  survivors"  occurring  in 
the  proviso,  contained  in  the  seventh  item  of  the  will,  and 
who,  by  reasonable  intendment  and  construction,  are  to  be 
considered  as  properly  embraced  and  included  in  them  ; 
whether  they  embrace  the  child  or  children  of.  a  deceased 
child  of  the  testator,  or  include  only  the  surviving  children 
of  the  testator,  named  in  the  sixth  item  of  the  will.  We 
shall  contend  that  they  include  both,  and  that  issue  of 
deceased  children  must  take,  with  the  surviving  children 
of  the  testator,  the   share  or  portion  of  any  one  of  the 


372     COURT  OF  ERRORS  AND  APPEALS. 

children  named,  who  died  without  leaving  lawful  issue. 
By  a  liberal  construction,  and  in  order  to  accomplish  the 
apparent  general  intention  of  the  testator,  in  limitations 
over  of  this  nature,  among  children  and  the  issue  of  de- 
ceased children,  the  courts  have  frequently  construed  the 
words  "  survivor  or  survivors,"  as  synonymous  with  the 
words  "  other  or  others,"  and  have  given  them  that  sense. 
Thus  giving,  what  we  have  no  doubt  the  testator  designed 
to  do  in  this  instance,  the  land  devised  to  any  one  of  the 
children,  on  his  death  without  lawful  issue,  to  the  surviv- 
ing children  of  deceased  children,  the  share  which  their 
parent  would  have  taken  if  then  living,  as  well  as  to  his 
own  surviving  children ;  meaning,  of  course,  to  include 
them  among  the  survivor  or  survivors  of  them,  though 
that  can  not  be  done  by  a  strict  construction  of  the  words, 
but  only  by  regarding  them  as  equivalent  to  the  words 
other  or  others,  which  has  often  been  done,  as  I  have  before 
remarked.  2  Pow.  on  Devises,  723;  2  Fearne  on  Hem.,  sees. 
264,  534,  536 ;  1  Pr.  Wins.  332  ;  2  Bro.  Ch.  Rep.  51.  And 
according  to  these  decisions,  whilst  we  must  let  in  the 
issue  of  deceased  children  to  take  the  share  which  their 
parent  or  parents  would  have  taken  if  living,  equally  with 
the  surviving  children  of  the  testator  the  portion  of  a  de- 
ceased child  without  issue,  the  former  would  take  estates 
tail,  while  the  latter  would  take  only  estates  for  life.  But 
this  construction  for  which  we  contend  does  not  depend 
simply  on  the  words  "  survivor  or  survivors,"  employed  in 
the  proviso  in  the  seventh  item  of  the  will,  but  it  derives 
additional  strength  and  support  from  the  succeeding  or 
eighth  item  of  the  will,  wherein  the  testator  says  "  that  it 
is  my  express  intention,  in  this  my  will,  to  create  and  es- 
tablish cross-remainders  in  the  aforesaid  estates,  lands,  and 
premises,  among  my  several  and  respective  children,  and 
their  children  lawfully  begotten,  so  that  my  children  and 
their  children,  as  aforesaid,  shall  inherit  so  long  as  any  ol* 
them  shall  remain."  Here  then  are  cross-remainders  ex- 
pressly limited  between  the  several  children  of  the  testa- 
tor, and  their  children  lawfully  begotten,  in   the  estates 


DOE  d.  COOPER  v.  TOWNSEND  et  al.  373 

devised,  and  by  referring  to  the  case  of  Doe  v.  Waimvright, 
which  was  a  case  similar  to  this,  though  the  limitation  was 
by  deed  instead  of  by  devise,  the  Court  will  find  that  Lord 
Kenyon  lays  hold  of,  and  lays  particular  stress  on  the  fact, 
that  there  were  cross-remainders  limited  in  the  deed 
among  the  issue  of  deceased  children,  to  show  that  the 
intention  of  the  grantor  could  only  be  effectuated  by 
giving  to  the  word  "  survivor"  the  same  signification  as 
the  word  other,  and  so  construed  it,  holding  that  the  les- 
sor of  the  plaintiff  was  thereby  entitled  to  recover.  5  T. 
R.  427.  Taking  all  the  provisions  of  the  will,  therefore, 
and  construing  them  together,  so  as  to  ascertain  the  in- 
tention of  the  testator,  and  applying  to  them  the  princi- 
ples adduced  from  the  authorities  cited,  I  think  there 
can  be  no  doubt  as  to  the  right  of  the  plaintiff  in  this  case 
to  the  decision  of  this  Court  in  his  favor. 

Fisher,  Attorney- General,  for  the  defendant:  There  is  no 
doubt  that  the  rule  of  construction  contended  for  on  the 
other  side  at  one  time  very  generally  prevailed  in  Eng- 
land ;  but  later  and  better  considered  decisions  have  long 
since  reversed  it,  even  in  that  country,  and  restored  the 
construction  of  the  words  "  survivor  or  survivors,"  in  de- 
vises of  this  character,  to  their  natural  and  legitimate 
signification,  repudiating  altogether  the  idea  at  one  time 
entertained,  that  they  were  in  this  connection  synony- 
mous with  the  words  other  or  others,  and  were  to  be  eo 
construed.  2  Jarm.  on  Wills,  609  ;  6  Cow.  178 ;  3  Johns. 
Hep.  291.  But  this  is  not  the  first  time  the  limitations  of 
this  will  have  been  under  consideration  and  adjudication 
in  our  courts.  The  counsel  lias  referred  to  other  provi- 
sions of  it  to  support  the  construction  for  which  he  con- 
tends ;  but  in  the  case  of  Cooper  v.  Buckmaster,  it  was  be- 
fore the  Court  of  Chancery,  several  years  ago,  and  the 
decree  of  the  Chancellor,  as  to  the  legacies  under  it,  was 
in  accordance  with  the  rule  of  construction  as  I  have 
stated  it  with  regard  to  these  words. 

There  are  no  terms  of  technical   import  employed    in 


374  COUET  OF  ERRORS  AND  APPEALS. 

this  devise,  and  the  only  rule  of  construction  applicable 
to  it  is  the  meaning  and  intention  of  the  testator,  to  be 
collected  from  the  language  in  its  plain  and  literal  sense, 
employed  in  the  various  provisions  of  the  will ;  and  read- 
ing it  in  this  light,  it  is  difficult  to  understand  how  the 
issue  of  any  deceased  child  can  succeed  to  any  part  of 
these  lands  and  premises,  so  long  as  there  is  a  remaining 
child  of  the  testator  surviving,  to  take  it  for  the  term  of 
his  life  at  least. 

N.  P.  Smithers,  on  the  same  side :  The  devise  is  not  to 
the  "  survivor  or  survivors"  merely,  which  might  possibly 
mean  other  or  others,  so  as  to  let  in  the  issue  of  deceased 
children,  as  contended  for  on  the  other  side ;  but  the  de- 
vise goes  further,  for  it  is  in  express  terms,  to  the  "  sur- 
vivor or  survivors  of  my  said  children,"  before  severally 
and  individually  named  in  his  will,  which  clearly  ascer- 
tains the  intention  of  the  testator,  and  as  clearly  excludes 
the  issue  of  deceased  children  from  taking,  so  long  as  any 
of  his  said  children  survive  to  enjoy  the  said  estates,  lands, 
and  premises.  In  no  devise  as  clear  and  explicit  as  this  is, 
on  this  particular  point,  can  it  be  found  that  any  question 
was  ever  raised  as  to  who  were  comprehended  within  the 
true  meaning  and  natural  import  of  such  words.  It  has 
only  been  in  cases  where  some  doubt  was  suggested  from 
the  context,  or  the  careless  use  of  the  terms,  whether  the 
testator  might  not  have  employed  them  in  a  broader  and 
more  general  sense,  that  the  rule  of  construction  referred 
to  ever  obtained ;  although  it  has  since  been  renounced 
even  in  that  class  of  cases.  But  in  no  case  where  the  words 
survivor  or  survivors  have  been  as  carefully,  and  cau- 
tiously, and  deliberately  adopted  and  used  by  the  testator, 
as  they  manifestly  were  in  this  instance,  have  they  ever 
received  any  other  than  their  strict  and  natural  significa- 
tion and  construction.  1  Exch.  Rep.  G74.  Is  it  not  there- 
fore evident,  after  carefully  considering  all  the  clauses  and 
limitations  of  this  will,  that  it  was  the  intention  of  the  tes- 
tator to  give  to  his  immediate  children,  life  estates,  and 


DOE  d.  COOPER  v.  TOWNSEND  et  al.  375 

after  the  death  of  the  last  survivor  of  them,  who  was  to 
have  the  whole  for  life,  then,  and  not  until  then,  that  the 
estate  was  to  pass  to  his  grandchildren  in  tail?  We  ac- 
cordingly find  throughout  the  provisions  of  the  will,  that 
wherever  a  child  of  the  testator  takes,  he  takes  an  estate 
for  life,  and  whenever  a  grandchild  takes,  he  takes  an  es- 
tate in  tail ;  and  this  clearly  shows  that  he  did  not  intend 
that  the  latter  should  take  as  survivors,  on  the  death  of 
any  one  of  his  said  children  without  lawful  issue,  the  share 
devised  to  him,  so  long  as  there  was  one  of  his  immediate 
children  surviving  to  take  it  for  life,  but  that  they  should 
only  take,  and  by  a  different  estate,  when  all  his  children 
were  no  more ;  for  it  is  not  to  be  supposed  that  it  could 
have  been  his  design  that  they  should  take  equally  in  point 
of  time  with  his  immediate  children,  but  unequally  or  dif- 
ferently in  point  of  estates  or  as  to  the  interest  which  they 
were  to  enjoy  in  the  same  property  by  virtue  of  the  same 
devise. 

Comegys,  for  the  plaintiff:  Cross-remainders  are  never 
implied  in  a  deed,  but  must  be  express;  in  a  will,  however, 
the  rule  is  otherwise,  and  they  may  be  and  often  are  im- 
plied. But  in  this  case  they  are  expressly  limited,  and 
that,  too,  by  a  testator  who  well  knew  and  perfectly  un- 
derstood what  he  was  about  when  he  penned  this  will. 
For  he  says  that  it  is  his  express  intention  to  create  cross- 
remainders  in  the  aforesaid  estates,  lands,  and  premises, 
among  his  several  and  respective  children  and  their,  chil- 
dren lawfully  begotten,  so  that  his  children  and  their  chil- 
dren, as  aforesaid,  should  inherit  so  long  as  any  of  them 
shall  remain  ;  and  although  he  has  done  this  in  the  usual 
method  of  limiting  such  interests,  yet  as  he  has  expressly 
and  emphatically  declared  his  intention  to  do  thin,  the 
limitations  must  be  so  construed  as  to  give  effect  to  that 
intention.  Xow,  how  can  this  be  done,  it'  his  grandchildren 
are  not  to  take  any  interest  in  the  share  of  a  deceased  child 
without  lawful  issue  until  all  his  children  are  dead?  How 
are  cross-remainders  established  and  carried  out  into  prac- 


376  COURT  OF  ERRORS  AND  APPEALS. 

tical  effect  among  his  several  and  respective  children  and 
their  children  lawfully  begotten,  if  the  latter  are  to  be  en- 
tirely excluded  from  taking  at  the  same  time  with  the 
former,  the  share  or  interest  which  their  parent  or  parents, 
if  living,  would  have  taken  in  the  portion  of  any  one  of 
his  children,  on  his  death,  without  leaving  lawful  issue  ? 
This  is  the  provision  of  the  will  which  I  think  imperatively 
requires  the  construction  contended  for  by  my  colleague, 
and  the  case  which  he  cited  from  5  T.  R.,  Doe  v.  Wain- 
wright,  is  directly  in  point.  There  the  Court,  inasmuch  as 
cross-remainders  were  expressly  established  in  a  limitation 
like  this,  in  order  to  effectuate  the  evident  intention  of  the 
grantor,  although  embarrassed  by  the  literal  meaning  of 
the  word  survivor,  in  the  connection  in  which  it  stood  in 
the  grant,  gave  to  it  the  sense  of  other,  and  so  construed  it 
as  to  accomplish  the  object  of  the  grantor.  The  testator, 
although  he  has  employed  a  multiplicity  of  words,  and  has 
endeavored,  with  much  and  careful  labor  apparently,  to  ex- 
press what  he  intended,  after  all,  has  not  been  very  suc- 
cessful in  defining  with  accuracy  his  precise  meaning;  but 
it  is  in  just  such  cases  that  this  rule  of  construction  applies 
to  aid  the  Court  in  ascertaining  and  effecting  his  intention, 
lie  does  not  seem  to  have  foreseen  and  contemplated  the 
contingency  which  has  really  happened,  but  to  have  framed 
his  will  as  if  he  considered  that  if  one  or  more  of  his  chil- 
dren should  die  without  leaving  issue,  it  would  probably 
be  before  they  attained  a  marriageable  age,  and  without 
leaving  issue  by  any  previously  deceased  child  to  survive 
them,  in  which  case  there  could  have  been  no  question  or 
difficulty  as  to  the  rights  of  the  devisees  by  survivorship, 
and  it  was  in  consequence  of  overlooking,  apparently,  what 
has  actually  occurred  by  death  among  them,  that  his  will 
is  now  involved  in  all  this  uncertainty  and  doubt  as  to  his 
meaning.  But,  as  I  before  remarked,  it  is  to  relieve  just 
such  difficulties  and  obscurities  as  these,  in  the  construc- 
tion of  devises,  that  the  rule  referred  to  has  been  adopted 
in  order  to  carry  out  the  intention  of  the  testator.  If,  then, 
the  Court  is  to  preserve  this  express  and  positive  intention 


DOE  d.  COOPER  v.  TOWNSEND  et  al.  377 

declared  by  him,  to  create  cross-remainders  in  these  lands 
and  premises,  and  in  all  his  real  estate,  among  his  children 
and  their  children  lawfully  begotten,  it  can  only  be  done 
by  treating  the  latter  class,  whenever  in  any  instance  they 
should  survive  any  one  of  the  former  class  dying  without 
leaving  lawful  issue,  in  the  light  of  his  survivors;  and  it 
would  certainly  be  doing  no  violence  to  the  language  of 
the  will,  and  would  be  in  entire  accordance  with  the  ob- 
vious intention  of  the  testator,  to  so  consider  and  con- 
strue it. 

As  to  their  taking  different  estates  by  cross-remainders, 
the  children  for  life  and  the  grandchildren  in  tail,  it  pre- 
sents no  objection  to  such  a  construction ;  since  by  the  will 
they  are  to  take  as  tenants  in  common,  and  no  unity  of 
estate  or  title  is  necessary  among  tenants  in  common. 

Houston,  J.,  delivered  his  opinion,  in  writing,  as  follows: 
This  is  an  action  of  ejectment,  brought  by  William  P. 
Cooper — -who  is  the  only  child  and  heir-at-law  of  Richard 
J.  Cooper,  deceased,  who  was  one  of  the  five  children  and 
devisees  for  life  of  the  testator — to  recover  from  Ignatius 
T.  Cooper,  the  real  defendant,  who  is  the  only  surviving 
child  of  the  testator,  the  one  undivided  fourth  part  of  the 
lands  and  premises  devised  by  Richard  Cooper,  in  the 
sixth  and  seventh  items  of  his  last  will  and  testament,  to 
his  son,  William  II.  Cooper,  who  afterwards  died  without 
issue ;  and  as  both  parties  claim  title  under  the  same 
devise  and  limitations  contained  in  the  will  of  the  testator, 
the  single  question  presented  for  the  consideration  of  the 
Court  is,  whether  the  lands  and  premises  devised,  in  the 
first  instance,  to  his  son,  William  II.  Cooper,  in  severalty, 
on  his  death  without  children,  survived  to  the  children  of 
the  deceased  children  of  the  testator,  as  tenants  in  common 
with  their  uncle,  Ignatius  T.  Cooper,  the  only  remaining 
child  of  the  testator  (all  the  other  children  of  the  testator 
having  died  before  William  II.),  or  to  Ignatius  T.  Cooper 
alone  as  such  sole  survivor?  And  this  depends  entirely 
upon  the  construction  to  be  given  to  the  portions  of  the 

25 


378     COUKT  OF  ERRORS  AND  APPEALS. 

will  which  relate  to  the  matter,  and  the  intention  of  the 
testator,  as  well  as  it  can  be  ascertained  from  language 
which,  when  it  comes  to  be  applied  to  the  case  before  us, 
involves  much  uncertainty  and  obscurity  of  meaning. 

In  the  sixth  item  of  his  will,  the  testator  devises  to  each 
of  his  five  children  by  name,  Ezekiel,  Sarah,  Richard  J., 
Ignatius  T.,  and  William  II.,  certain  portions  of  his  real 
estate  in  severalty  for  life,  remainder  to  the  children  of 
each  in  tail,  in  the  portions  so  devised,  subject  to  the  fol- 
lowing proviso,  contained  in  the  seventh  item  of  it : 

"  Provided,  nevertheless,  in  case  any  one  or  more  of  my 
said  children  should  happen  to  die  without  leaving  child,  or 
children,  lawfully  begotten  of  their  bodies,  that  can  take 
and  hold  my  real  estate,  as  my  immediate  devisees,  agree- 
able to  the  true  intent  and  meaning  of  this  my  will;  then 
in  such  case  I  give  and  devise  the  lands  and  premises, 
above  devised,  to  such  child  or  children  which  may,  or 
shall  happen  to  die  as  aforesaid,  unto  the  survivor,  or  sur- 
vivors, of  my  said  children,  during  their  natural  life;  and 
after  their  decease,  I  give  and  devise  the  lands  and  pre- 
mises, as  aforesaid,  to  the  child  and  children,  both  males 
and  females,  respectively,  of  such  survivor  or  survivors, 
lawfully  begotten  of  their  bodies  forever,  of  any  of  my  chil- 
dren which  may  be  dead,  leaving  such  child  or  children, 
such  child  or  children  claiming  such  part  or  share  as  the 
parent  or  parents  of  such  child  or  children  would  have 
claimed,  if  living,  to  be  equally  divided  between  my  sur- 
viving child  or  children,  as  aforesaid,  and  the  child  or 
children,  lawfully  begotten,  of  any  that  may  be  dead, 
claiming  the  right  of  their  parent  or  parents  as  if  living, 
share  and  share  alike  as  tenants  in  common,  and  not  as 
joint  tenants,  and  to  the  respective  heirs,  as  aforesaid,  for- 
ever; and  it  is  further  provided,  and  it  is  my  will,  and 
desire,  and  intention,  that  if  the  whole  of  my  children 
should  die  without  leaving  lawful  child,  or  children,  or 
legal  descendants  of  such  child  or  children,  so  that  the 
whole  of  the  lawful  issue  of  my  own  body  should  become 
extinct,  then  and  in  such  case  I  give  and  devise  the  re- 


DOE  d.  COOPEK  v.  TOWNSEND  et  al.  379 

mainder  and  remainders,  reversion  and  reversions,  of  my 
whole  estate,  in  the  manner  and  form  following,"  &c. 

The  testator  then  devises  over  the  estate  to  others ;  and, 
after  these  devises  over,  the  testator  then  adds  as  follows 
in  the  eighth  item  of  the  will : 

"  Be  it  known,  that  it  is  my  express  intention,  in  this 
my  will,  to  create  and  establish  cross-remainders,  on  and 
in  the  aforesaid  estates,  lands,  and  premises,  among  my 
several  and  respective  children,  and  their  children  lawfully 
begotten,  so  that  my  children  and  their  children,  as  afore- 
said, shall  inherit  so  long  as  any  of  them  shall  remain." 
And  he  afterwards  reiterates  the  same  desire  substantially 
in  the  codicil  to  his  will  of  the  22d  of  July,  1816,  in  which 
he  subjoins  the  following  provision: 

"  I  do  also  declare,  that  it  is  my  intention  and  will  that 
the  whole  of  my  estate,  both  real  and  personal,  shall  go  to 
and  be  divided  to  and  amongst  my  children  and  the  lawful 
issue  of  their  respective  bodies,  so  long  as  any  of  them 
shall  remain ;  and  that  no  other  person,  in  remainder, 
shall  take  or  inherit  any  part  thereof,  so  long  as  any  of  my 
children,  or  their  lawful  issue,  shall  survive." 

The  present  case,  however,  turns  upon  the  construction 
to  be  given  to  the  proviso  contained  in  the  seventh  item 
of  the  will,  and  the  intention  of  the  testator,  as  the  same 
is  to  be  deduced  from  all  the  provisions  above  quoted. 
And  I  must  say,  after  a  careful  consideration  of  the  sub- 
ject, that  my  mind  has  been  conducted  to  the  conclusion, 
that  the  premises  devised  to  William  II.,  on  his  death 
without  children,  survive  for  the  present  to  Ignatius  T., 
the  sole  surviving  child  of  the  testator,  for  the  term  of  his 
life.  What  the  testator  would  have  written,  or  what  pre- 
cise language  he  would  have  employed  in  addition  to  that 
which  he  has  used,  had  he  foreseen  what  has  actually 
occurred,  and  which  he  may  not  at  the  time  of  drawing 
his  will  at  all  anticipated,  I  cannot  pretend  to  say;  but  of 
one  thing  I  am  convinced,  that  if  there  is  any  certain  and 
unquestionable  meaning  to  be  extracted  from  the  multi- 
plicity of  words  introduced  into  the  seventh  item  of  the 


380  COURT  OF  ERRORS  AND  APPEALS. 

will,  it  is  the  intention,  that  if  any  one  of  his  children  should 
die  without  leaving  a  lawful  child,  his  primary  share, 
devised  to  him  for  life,  should  pass  to  the  survivor  or  sur- 
vivors of  his  said  children  for  life ;  and  although  it  is  what 
follows  after  that  which  chiefly  embarrasses  the  construc- 
tion of  the  item  in  question,  and  notwithstanding  he  after- 
wards speaks  of  the  children  of  deceased  children  taking 
as  tenants  in  common  with  his  surviving  child  or  children, 
the  share  which  his  or  their  parent  or  parents  would  take 
if  living,  yet  I  do  not  understand  that  to  refer  to  a  share 
when  it  first  survives  by  the  death  of  a  child  without  chil- 
dren; but  I  take  it  to  mean,  that  when  a  share  has  thus 
once  survived,  by  the  death  of  a  child  without  children,  to 
the  surviving  children  of  the  testator  for  life,  and  then  one 
or  more  of  those  survivors  afterwards  dies  leaving  chil- 
dren, those  children  shall  take  the  share  or  shares  of  their 
parent  or  parents,  or  which  their  parents  would  take  if 
then  living;  that  is  to  say,  would  take  per  stirpes  and  not 
per  capita,  as  tenants  in  common  with  a  surviving  child  or 
children  of  the  testator,  the  lands  and  premises  which  had 
thus,  in  the  first  instance,  survived  to  the  children  alone  of 
the  testator,  for  the  term  of  their  lives.  For  it  will  be  ob- 
served, that  while  the  testator  expressly  and  unequivocally 
provides,  that  if  any  of  his  said  children  shall  die  without 
leaving  lawful  child  or  children,  the  lands  devised  to  him 
in  severalty,  in  the  first  instance,  for  life,  shall  go  to  the 
survivor  or  survivors  of  his  said  children  for  life  (by  which 
we  are  to  understand  the  "  survivor  or  survivors"  then 
living),  he  does  not  add,  as  we  often  find  to  be  the  ease  in 
limitations  over  of  this  nature,  and  to  the  longest  liver  of  (hem 
for  life,  and  which  would  have  carried  it  over  by  accruer 
to  the  last  survivor  of  them  for  life,  if  all  the  other  children 
had  been  living  on  the  death  of  William  II.  On  the  con- 
trary, he  gives  it  to  the  survivor  or  survivors  of  them 
(which  means,  then  living),  and  on  the  deaths  of  those 
survivors,  as  they  shall  afterwards  occur,  with  or  without 
issue,  their  children,  if  they  leave  any,  shall  take  the  share 
of  his  or  their  parents,  or  which  their  parents  would  take, 


DOE  d.  COOPER  v.  TOWNSEND  kt  al.  381 

if  then  living,  in  the  lands  and  premises  which  had  origin- 
ally accrued  to  those  survivors,  at  the  time,  by  the  death 
of  one  or  more  of  the  primary  devisees  without  children, 
to  hold  the  shares  of  their  parents  which  they  would  then 
take  as  tenants  in  common  with  the  surviving  child  or 
children  of  the  testator  who  might  be  still  living.  Strip- 
ping the  clause  in  question  of  its  redundant  phraseology, 
without  impairing  its  sense,  as  I  understand  it,  I  read  it 
as  if  it  were  expressed  in  the  following  language  :  And  in 
case  any  of  my  said  children  should  die  without  leaving  a  lawfid 
child,  1  give  the  lands  and  premises  above  devised  to  any  such 
child  of  mine,  to  the  survivor  or  survivors  of  my  said  children 
then  living  during  his  or  their  natural  lives;  and  after  the  decease 
of  such  survivor  or  survivors,  and  as  the  same  shall  occur,  I  give 
and  devise  the  said  lands  and  premises  so  accruing  to  them  as 
aforesaid  [that  is,  by  the  death  of  any  one  of  his  children  without 
children,  as  aforesaid),  to  the  child  or  children  of  such  survivor 
or  survivors  as  may  have  left  any,  the  child  or  children  of  such 
survivor  or  survivors,  to  take  the  part  or  share  which  his,  her,  or 
their  parent  would  hold  or  take  if  living,  to  be  equally  divided 
between  them  and  my  surviving  child  or  children  as  tenants  in 
common,  fie.  By  this  construction  and  interpretation  of  the 
testator's  meaning,  I  reconcile  the  several  parts  and  pro- 
visions of  this  clause  of  the  will  with  each  other,  and  also 
with  what  is  added  in  the  eighth  item,  and  in  the  codicil 
of  the  22d  of  July,  1816,  and  that,  too,  without  the  neces- 
sity of  rejecting,  substituting,  or  adding  a  word  in  any 
part  of  it,  as  we  are  bound  to  do,  if  possible — although  I 
have  simplified  the  language  of  it,  the  better  to  illustrate 
and  convey  my  understanding  of  the  meaning  of  it  as 
penned  by  the  testator. 

I  do  not  deem  it  necessary  to  say  anything  more  on  the 
subject,  except  to  add,  that  in  no  aspect  in  which  I  have 
contemplated  the  devise  in  question,  and  by  no  reasonable 
construction  which  I  have  been  able  to  give  to  the  terms 
in  which  it  is  expressed,  can  I  come  to  any  other  conclu- 
sion, than  that  the  lands  and  premises  devised  to  William 
II.  Cooper  have  passed,  by  his  death  without  issue,  to  his 


382     COURT  OF  ERRORS  AND  APPEALS. 

brother,  Ignatius  T.,  the  sole  surviving  child  of  the  testa- 
tor, for  the  term  of  his  life,  and  that  judgment  should 
accordingly  be  entered  for  the  defendants. 

The  other  members  of  the  Court,  without  expressing 
any  opinion  as  to  the  proper  exposition  of  the  subsequent 
limitations  and  provisions  contained  in  the  will,  concurred 
in  the  conclusion,  that  the  lands  and  premises  in  question, 
devised  to  William  H.  Cooper,  the  son  of  the  testator,  for 
life,  on  his  death  without  lawful  issue,  survived  and  passed 
to  his  brother*  Ignatius  T.  Cooper,  the  sole  surviving  child 
of  the  testator,  for  life,  which  was  the  only  question  in- 
volved in  the  case;  and  directed  their  opinion  to  be  certi- 
fied accordingly  to  the  Court  below. 


William  S.  Custis  and  Virginia  his  wife,  late  Virginia 
Potter,  and  Edmond  IT.  Potter  and  Sarah  T.  Potter, 
minors,  by  their  next  friend  Benjamin  Potter,  com- 
plainants below,  Appellants,  v.  George  S.  Adkins,  ad- 
ministrator e.  t.  a.  of  Benjamin  Potter,  deceased,  Chas. 
T.  Fleming,  trustee,  and  others,  respondents  below,  Ap- 
pellees. 

As  a  general  rule  a  party  is  entitled  to  interest  on  account  of  delay  in  the 
payment  of  the  principal  sum  or  debt,  and  in  respect  to  legacies  it  is 
well  settled  that  interest  is  payable  on  them  only  from  the  time  when 
they  become  actually  due. 

Specific  legacies,  or  bequests  of  a  corpus,  which  in  contemplation  of  law 
are  considered  as  severed  from  the  bulk  of  the  testator's  property  by 
the  will  itself,  carry  their  product  or  interest  from  the  testator's  death, 
along  with  the  principal,  and  goes  to  the  legatee,  unless  the  will  con- 
tains directions  to  the  contrary.  But  general  pecuniary  legacies,  where 
no  time  of  payment  is  appointed  by  the  testator,  are  not  due  and  pay- 
able until  one  year  after  his  death,  and  do  not  bear  interest  until  after 
the  expiration  of  that  time. 

With  respect  to  general  pecuniary  legacies,  when  the  time  of  payment  is 
named  by  the  testator,  there  is  no  general  rule;  better  settled  than  that 
such  legacies  do  not  carry  interest  before  the  arrival  of  the  appointed 
time  of  payment,  notwithstanding  the  legacies  are  vested.     There  art; 


CUSTIS  &  WIFE  v.  POTTEK'S  ADMK.  383 

certain  exceptions  to  this  rule,  however,  to  be  found  in  cases  where  the 
legatee  is  a  child  of  the  testator,  or  one  towards  whom  he  has  placed 
himself  in  loco  parentis,  or  where  from  the  terms  of  the  will  it  is  mani- 
fest the  testator  intended  the  legatee  should  have  the  interest  accruing 
on  the  legacy  before  the  time  of  payment.  In  the  absence  of  such  in- 
tention expressed  in  the  will,  or  clearly  implied  from  its  terms,  the 
legacy  does  not  in- the  meantime  bear  interest. 

In  the  case  of  a  child  of  the  testator,  or  one  towards  whom  he  stands  in 
the  place  of  a  parent,  interest  is  given  in  the  meanwhile  upon  the 
legacy  by  way  of  maintenance,  where  the  child  has  no  other  provision ; 
for  it  is  not  to  be  presumed  that  the  parent  in  such  a  case  was  so  re- 
gardless of  the  moral  obligations  resting  upon  iim  as  to  leave  the  child 
in  the  meantime  in  a  state  of  destitution.  Cases  of  intention  apparent 
in  the  will  to  give  the  intermediate  interest  from  the  death  of  the  tes- 
tator speak  for  themselves.  Something  must  be  said  in  the  will  that 
shows  such  intention  ;  otherwise  such  interest  cannot  be  allowed. 

Bequests  of  the  "residue"  are  also  properly  distinguishable  from  the  ordi- 
nary cases  of  general  pecuniary  legacies  payable  infuturo;  for  a  bequest 
of  the  residue,  although  made  payable  infuturo,  carries  the  interest  in 
the  meantime  to  the  legatee. 

But  the  bequests  in  question  present  the  ordinary  case  of  vested  legacies 
payable  at  a  future  day;  namely,  when  the  nephew  should  arrive  at  the 
age  of  twenty-one  years,  and  the  nieces  at  the  age  of  eighteen ;  who  are 
not  children  of  the  testator,  nor  persons  towards  whom  he  stood  in  loco 
parentis  in  his  lifetime,  and  not  being  residuary  legatees,  and  there 
being  no  direction  or  provision  in  the  will  from  which  it  can  be  rea- 
sonably inferred  that  the  testator  designed  to  give  them  the  interest 
accruing  thereon  in  the  meantime,  they  cannot  take  it;  but  the  same 
would  go  to  the  residuary  legatee. 

Appeal  from  the  decree  of  the  Chancellor,  sitting  in 
Kent  County.  Before  Gilpin,  C.  J.,  and  Milligan,  "Wootten, 
and  Houston,  Justices. 

The  appellants,  complainants  below,  had  filed  in  the 
court  below  their  bill  of  review,  which  stated  that  George 
S.  Adkins,  administrator  c.  t.  a.  of  Benjamin  Potter,  de- 
ceased, had  previously  filed  in  that  court  his  bill  of  com- 
plaint against  the  present  complainants  and  sundry  other 
parties,  legatees  of  the  said  Benjamin  Potter,  deceased, 
setting  forth  among  other  things  that  the  said  Benjamin 
Potter,  on  the  26th  day  of  July,  1839,  had  made  and  pub- 
lished his  last  will  and  testament,  and  had  afterwards  made 
three  several  codicils  thereto,  by  which  he  had  bequeathed 
certain  legacies  therein  stated,  to  the  parties  respondent  to 


3&4  COURT  OF  ERRORS  AND  APPEALS. 

the  said  bill.  That  among  the  bequeste  in  the  said  bill  set 
forth  as  contained  in  the  said  last  will  and  testament,  was 
the  following:  "Item  6th.  I  give  and  bequeath  to  my 
nephew,  Benjamin  Potter,  son  of  John  R  Potter,  deceased, 
four  thousand  dollars.  I  give  and  bequeath  to  my  nephew 
Edmond  Upsher  Potter,  son  of  John  R.  Potter,  deceased, 
one  thousand  dollars.  I  give  and  bequeath  to  mj  niece 
Sarah  T.  Potter,  daughter  of  John  R  Potter,  deceased,  five 
hundred  dollars.  I  give  and  bequeath  to  my  niece  Vir- 
ginia Potter,  daughter  of  John  R.  Potter,  deceased,  five 
hundred  dollars.  AH  the  sums  bequeathed  to  the  four 
above-named  legatees  to  be  paid  by  my  executor,  or  guar- 
dians appointed  by  the  Orphans'  Court,  to  the  males  when 
they  arrive  at  the  age  of  twenty-one  years,  and  to  the 
females  when  they  arrive  at  the  age  of  eighteen  years." 
That  by  one  of  the  codicils  to  his  will  the  testator  after- 
wards modified  the  bequest  as  follows :  u  I  hereby  cancel, 
annul  and  make  void  all  that  part  and  parcel  of  item  6th 
written  and  stated  in  my  last  will  and  testament  aforesaid, 
so  far  as  it  mentions,  relates  to,  or  concerns  my  nephew 
Benjamin  Potter,  son  of  John  R  Potter,  deceased,  and  in 
the  stead  and  place  of  four  thousand  dollars  therein  given 
and  bequeathed  to  him,  I  hereby  give  and  bequeath  to  him, 
my  said  nephew  Benjamin  Potter,  all  that  farm  or  tract  of 
land  whereon  I  now  live,  and  also  seven  acres  and  forty- 
five  perches  recently  purchased  by  me  of  the  heirs  of  Doctor 
Mark  Greer,  to  him,  his  heirs  and  assigns  forever.  Thirdly. 
In  addition  to  the  bequests  or  legacies  made  and  given  to 
my  nephew  Edmond  Upsher  Potter,  son  of  John  R.  Potter, 
deceased,  and  to  each  of  my  nieces,  Sarah  T.  Potter  and 
Virginia  Potter,  daughters  of  John  R  Potter,  deceased,  as 
written  and  mentioned  in  the  aforesaid  sixth  item  of  my 
last  will  and  testament  aforesaid,  I  hereby  give  and  be- 
queath to  them,  my  said  nephew  Edmond  Upsher  Potter 
and  my  nieces  Sarah  T.  Potter  and  Virginia  Potter,  chil- 
dren of  John  R  Potter,  deceased,  the  four  thousand  dollars 
mentioned  in  the  aforesaid  sixth  item,  to  them,  the  said 
Edmond  Upsher  Potter,  and  Sarah  T.  Potter  and  Virginia 


CUSTIS  k  WIFE  v.  POTTER'S  ADMR.  385 

Potter,  share  and  share  alike ;  the  same  to  be  paid  to  them 
in  the  same  manner  and  at  the  same  time  as  is  directed 
and  mentioned  in  the  aforesaid  sixth  item  of  my  said  last 
will  and  testament."  That  upon  the  final  account  passed 
by  the  said  administrator  on  the  estate  of  the  said  testator, 
there  was  an  unappropriated  balance  of  $7392.84  remaining 
in  his  hands  applicable  to  the  legacies  in  the  said  last  will 
and  codicils  bequeathed ;  and  that  all  the  legatees  therein 
named  had  survived  the  testator  and  were  still  living,  with 
the  exception  of  one,  whose  administrator  was  made  a 
party  to  the  bill.  The  bill  also  set  forth  the  periods  at 
which  the  several  legacies  were,  under  the  terms  of  the 
Baid  will  and  codicil,  respectively  payable,  and  that  the 
legatee  Virginia  Custis,  late  Virginia  Potter,  attained  the 
age  of  eighteen  years  on  the  14th  of  August,  1845,  at  which 
time  the  legacy  bequeathed  to  her  became  payable,  and 
that  she  was  then  the  wife  of  the  said  William  S.  Custis ; 
and  that  the  said  Sarah  T.  Potter  was  born  on  the  5th  day 
of  May,  1836,  and  the  said  Edmond  Upsher  Potter  on  the 
8th  day  of  August,  1834.  That  the  legacies  in  the  said 
will  and  codicils  bequeathed  amounted  in  the  aggregate  to 
the  sum  of  $16,400,  exclusive  of  a  bequest  of  $12,000  for 
an  insane  asylum,  in  the  State  of  Delaware ;  and  that  con- 
sequently the  unappropriated  balance  of  the  personal  estate 
in  the  hands  of  the  administrator  was  greatly  insufficient 
to  pay  the  whole  of  them,  even  excluding  the  said  last- 
mentioned  bequest.  And  the  said  bill  of  complaint,  after 
further  setting  forth  certain  payments,  which  the  said  ad- 
ministrator had  made  on  account  of  said  legacies,  and  sug- 
gesting that  questions  had  arisen  which  he  could  not  de- 
termine -touching  the  construction  and  effect  of  certain 
parts  of  said  will  and  codicils,  and  particularly  touching 
the  validity  of  the  said  last-mentioned  bequest  for  an  insane 
asylum,  and  the  proper  mode  of  apportioning  the  said  un- 
appropriated balance  among  the  several  legatees,  prayed 
the  Court  to  instruct  him  in  the  premises. 

That  all  the  defendants  named  in  the  said  bill  of  com- 
plaint, duly  appeared  to  the  same,  and  put  in  their  answers 


386  COURT  OF  ERRORS  AND  APPEALS. 

thereto,  by  which  they  admitted  all  the  facts  therein  stated, 
and  submitted  themselves  to  the  decision  of  the  Court, 
touching  the  several  questions  raised  thereby.  Where- 
upon, it  appearing  to  the  Chancellor  that  the  testator 
had  bequeathed  to  the  said  Virginia  Custis  the  sum  of 
$1833.33J,  payable  when  she  should  arrive  at  the  age 
of  eighteen  years ;  to  the  said  Sarah  T.  Potter,  the  like 
amount,  payable  when  she  should  attain  the  same  age, 
and  to  the  said  Edmond  Upsher  Potter,  the  sum  of 
$2333.33J,  payable  when  he  should  arrive  at  the  age  of 
twenty-one  years ;  and  that  the  said  Virginia  Custis  had 
attained  the  age  of  eighteen  years  on  the  14th  day  of  Au- 
gust, 1845,  and  that  the  legacy  bequeathed  to  her  became 
payable  on  that  day,  and  that  Sarah  T.  Potter  would  attain 
the  age  of  eighteen  years  on  the  5th  day  of  May,  1854,  when 
the  legacy  bequeathed  to  her  would  become  payable,  and 
that  the  said  Edmond  Upsher  Potter  would  attain  the  age 
of  twenty-one  years  on  the  8th  day  of  August,  1855,  when 
the  legacy  to  him  would  become  payable ;  it  was  considered 
by  the  Chancellor,  that  in  ascertaining  the  then  present 
value  of  the  said  legacies  respectively,  for  the  purpose  of 
determining  their  several  proportions  of  the  said  unappro- 
priated balance  of  personal  estate,  interest  at  the  rate  of 
six  per  centum  per  annum  should  be  calculated  upon  the 
legacy  of  the  said  Virginia  Custis,  from  the  said  14th  day 
of  August,  1845,  when  it  became  due  and  payable,  and  that 
a  discount  at  the  same  rate  should  be  deducted  from  the 
legacies  of  the  said  Sarah  T.  and  Edmond  Upsher  Potter, 
from  the  date  of  the  decree  in  said  cause  to  the  times  at 
which  they  should  respectively  become  payable,  to  wit,  as 
to  the  former,  to  the  5th  day  of  May,  1854,  and  as  to  the 
latter,  to  the  8th  day  of  August,  1855;  and  upon  which 
basis  of  calculating  the  value  at  that  time  of  the  three 
several  legacies  aforesaid,  they  were  ascertained  by  the 
decree  of  the  Chancellor  in  the  said  cause  to  be  as  follows  : 
the  legacy  of  the  said  Virginia  Custis  was  $2253.77,  the 
legacy  of  the  said  Sarah  T.  Potter  was  81416.61,  and  the 
legacy  of  Edmond  Upsher  Potter  was  $1703.57;  and  cal- 


CUSTIS  &  WIFE  v.  POTTER'S  ADMR.  387 

culating  upon  the  same  basis  the  value  of  the  whole  of  the 
legacies  under  the  will  and  codicils  (exclusive  of  the  be- 
quest for  the  insane  asylum,  which  was  adjudged  by  the 
Chancellor  to  be  void  and  of  no  effect)  was  by  the  said  de- 
cree at  that  time  to  be  the  sum  of  $11,737.43.  And  that 
it  further  appeared  to  the  Chancellor,  after  deducting 
the  costs  of  the  said  suit,  that  there  would  remain  in  the 
hands  of  the  said  administrator  the  sum  of  $8186.69 J,  ap- 
plicable to  the  said  legacies,  and  that  it  was  insufficient  to 
pay  the  whole  amount  thereof,  whereupon  it  was  considered 
and  decreed  by  him  that  all  the  legacies  should  abate  pro 
rata,  and  what  portion  of  the  said  last-mentioned  sum 
should  be  paid,  by  the  said  administrator,  to  the  several 
legatees  respectively  whose  legacies  were  then  payable,  and 
what  portion  he  should  retain  for  those  respectively  whose 
legacies  were  not  then  due,  but  would  be  payable  at  future 
periods ;  and  from  which  appeared,  among  others,  that  the 
3um  decreed  to  be  paid  to  the  said  William  S.  Custis  on 
account  of  the  legacy  of  his  wife,  the  said  Virginia  Custis, 
was  $1571.83,  and  that  the  amount  to  be  retained  for  the 
said  Sarah  T.  Potter,  was  $988.42,  and  for  the  said  Edmond 
Upsher  Potter,  $1188.38.  That  in  and  by  the  said  last 
will  and  codicils,  the  testator  had  devised  all  the  residue 
of  his  estate,  real  and  personal,  to  Potter  Griffith,  George 
S.  Adkins,  and  Martin  "W*.  Bates,  upon  certain  charitable 
uses  and  trusts  in  said,  will  and  codicils  particularly  set 
forth,  who  after  the  death  of  the  testator  declined  to  take 
upon  themselves  the  burden  of  the  same,  whereupon  the 
said  Charles  T.  Fleming  was  appointed  by  the  Court  trus- 
tee of  such  residuary  estate  ;  and  that  all  of  the  said  lega- 
tees in  said  last  will  and  codicils  named,  had  afterwards 
exhibited  in  that  Court  their  original  bill  of  complaint 
against  the  said  George  S.  Adkins,  administrator,  and  the 
said  Charles  T.  Fleming,  trustee  as  aforesaid,  praying  that 
the  residue  of  said  legacies  remaining  unpaid  might  be 
raised  by  the  sale  of  said  real  estate,  or  so  much  thereof 
as  might  be  necessary,  under  the  order  of  the  Court,  to 
which  the  defendants  had  duly  appeared  and  put  in  their 


388  COURT  OF  ERRORS  AND  APPEALS. 

answers,  whereupon  it  was  adjudged  and  decreed  by  the 
Chancellor,  that  the  legacies  in  said  will  and  codicils  be- 
queathed, were  by  the  terms  and  effect  of  the  same  charged 
upon  the  rents  and  profits  accruing  from  the  said  residuary 
real  estate,  and  that  the  residue  of  the  said  legacies  should 
be  raised  by  the  gradual  accumulation  of  the  rents  and 
profits  thereof,  but  not  that  the  same  should  be  sold ;  from 
which  decree  the  complainants  appealed,  and  on  that  ap- 
peal it  was  adjudged  and  decreed  by  the  Court  of  Errors 
and  Appeals,  that  the  said  legacies  were  charged  by  the 
terms  and  effect  of  the  said  will  and  codicils  on  the  said 
residuary  real  estate,  and  that  the  same,  or  so  much  thereof 
as  should  be  necessary,  ought  to  be  sold  under  the  order 
of  the  Coart  of  Chancery,  to  satisfy  the  residue  of  said  lega- 
cies ;  which  was  afterwards  duly  made  at  the  March  Term 
1853,  of  the  said  last-mentioned  Court,  and  so  much  of 
said  real  estate  was  thereupon  sold  by  the  order  of  the 
said  Court  as  was  necessary  to  raise  the  residue  of  the 
legacies  remaining  unpaid  as  aforesaid. 

But  that  the  complainants  in  the  present  bill  of  review 
had  been  advised  that  the  decree  first  above  mentioned, 
made  by  the  Chancellor  on  the  10th  day  of  June,  1849, 
was  erroneous,  in  so  far  as  it  had  adjudged  that  in  ascer- 
taining the  value  of  the  legacies  in  the  aforesaid  will  and 
codicils  to  the  present  complainants,  Virginia,  Sarah  T., 
and  Edmond  Upsher  Potter,  interest  at  the  rate  of  six 
per  centum  per  annum  should  be  calculated  upon  the 
legacy  of  the  said  Virginia,  from  the  day  it  became  due 
and  payable,  to  wit,  the  14th  day  of  August,  1845,  and 
that  a  discount  at  the  same  rate  should  be  deducted  from 
the  legacies  of  the  said  Sarah  T.  and  Edmond  Upsher 
Potter,  from  the  date  of  said  decree  to  the  times  at  which 
they  would  respectively  become  payable,  to  wit,  in  the 
case  of  the  former,  on  the  5th  day  of  May,  1854,  and  in 
the  case  of  the  latter,  on  the  8th  day  of  August,  1855; 
because  by  the  terms  and  effect  of  the  several  bequests 
made  to  them  in  the  said  will  and  codicils,  and  agreeably 
to  the  rules  of  law  and  equity  in  that  behalf,  they  were 


CUSTIS  k  WIFE  y.  POTTER'S  ADMR  389 

severally  entitled  to  receive  lawful  interest  upon  their 
respective  legacies  from  the  expiration  of  one  year  after 
the  death  of  the  said  testator,  to  wit,  from  the  21st  day  of 
October,  1844,  and  not  from  the  times  when  the  same 
should  become  respectively  payable  as  aforesaid ;  and 
therefore,  that  it  onght  to  have  been  in  and  by  the  said 
decree  adjudged,  that  in  ascertaining  the  value  of  the  said 
legacies  at  that  time,  interest  at  the  rate  of  six  per  centum 
per  annum  should  be  calculated  upon  them  respectively 
from  the  said  21st  day  of  October,  1844,  as  aforesaid. 
Wherefore  the  complainants  in  the  bill  of  review  prayed 
the  Chancellor  that  the  aforesaid  decree,  so  far  as  the 
same  was  erroneous,  might  be  reversed,  and  that  the  com- 
plainants should  be  adjudged  by  him  to  be  entitled  to  in- 
terest on  their  respective  legacies  from  the  date  last  men- 
tioned ;  and  for  other  and  further  relief,  Ac. 

To  this  bill  the  defendants  appeared  and  entered  de- 
murrers, and  upon  the  argument  of  the  same  before  the 
Chancellor,  the  bill  of  complainants  was  dismissed  with 
costs ;  and  from  this  decree  the  present  appeal  was  taken. 

D.  M.  Bates,  for  the  appellants :  The  appeal  is  from  a 
decree  of  the  Chancellor,  on  a  bill  of  review  filed  in  his 
Court,  and  the  only  question  to  be  considered  here  is 
whether  certain  legacies  payable  mfuturo,  bequeathed  by 
the  testator,  Benjamin  Potter,  to  the  children  nominatim  of 
his  nephew,  John  R,  Potter,  deceased,  bore  interest  until 
they  were  payable,  or  not  The  case  comes  up  here  on 
the  bill  and  demurrers  filed  in  the  Court  below,  and  this 
is  the  only  question  presented  by  them.  The  legacies  in 
question  are  vested  legacies,  payable  at  a  future  period, 
and  are  not  contingent  legacies.  As  a  general  rule,  I 
admit  that  legacies  payable  at  a  future  period  do  not  bear 
interest  until  the  time  of  payment.  2  Wnis.  on  Exrs.  1024. 
But  there  are  exceptions  to  this  rule ;  as,  where  the  testa- 
tor stands  in  the  relation  of  a  parent,  or  in  loco  parentis,  as 
the  books  term  it,  to  the  legatee,  in  which  case  the  legacy 
bears  interest  before  the  time  of  payment.     Also,  where 


390  COUKT  OF  ERRORS  AND  APPEALS. 

the  legacy,  by  the  terms  or  directions  of  the  will,  is  to  be 
severed  from  the  bulk  of  the  estate  before  the  time  of 
payment,  and  is  to  become  a  specific  fund  producing  in- 
terest, the  legatee  takes  the  interest  accruing  from  the 
death  of  the  testator,  unless  it  is  otherwise  disposed  of  by 
him ;  because  it  is  presumed  in  such  a  case,  that  the  testa- 
tor intended  that  the  legatee  should  have  the  interest. 
2  Wms.  on  Exrs.  1021.  Nor  is  it  necessary  that  the  bequest 
should  be  of  a  specific  fund  at  the  time,  as  of  stock,  for 
instance,  in  order  to  carry  interest ;  for  it  is  sufficient  if  it 
is  to  become  specific  in  its  nature  afterwards,  as  in  the  case 
of  the  bequest  of  a  residue.  Nicholls  v.  Osborne,  2  Pr.  Wms. 
420  ;  Chauworth  v.  Hooper,  1  Bro.  Ch.  Cases,  82.  The  same 
is  the  rule  when  the  legacy  must  be  taken  out  of  or  severed 
from  the  residue,  and  thus  becomes  specific  in  its  charac- 
ter, in  order  that  the  residue  may  be  disposed  of  under 
the  will  before  the  legacy  becomes  payable.  Because  in 
this  case,  if  the  interest  accruing  in  the  meantime  from 
the  death  of  the  testator  is  not  otherwise  disposed  of  by 
him,  the  fruit  follows  the  principal,  and  the  legatee  will 
take,  for  it  can  belong  to  no  one  else.  Ackerley  v.  Vernon, 
1  Pr.  Wms.  783.  The  case  of  Heath  v.  Perry,  3  Atk.  101, 
which  will  probably  be  cited  on  the  other  side,  I  am  aware 
is  in  apparent  conflict  with  this  decision  ;  but  in  that  case, 
it  was  held  that  the  intermediate  interest  did  not  pass  to 
the  legatee,  because  there  was  an  intention  to  the  con- 
trary apparent  on  the  face  of  the  will,  and  was  otherwise 
disposed  of  by  the  testator ;  and  besides  that,  it  was  not 
the  duty  of  the  executor  to  sever  the  legacy  from  the  bulk 
of  the  estate  in  the  meanwhile.  I  am  also  aware  that  the 
rule  is,  that  no  one  in  this  connection  can  stand  in  loco 
■parentis  to  any  but  a  lawful  child,  or  to  one  towards  whom 
he  has  stood  in  that  relation  in  his  lifetime :  not  even  a 
grandfather  to  a  grandchild,  a  father  to  a  natural  child,  or 
an  uncle  to  a  niece.  Leslie  v.  Leslie,  10  Eng.  Ch.  Rep.  386, 
in  note.  But  the  case  of  Scamer  and  others  v.  Bingham  and 
others,  3  Atk.  54,  and  the  case  of  Crickett  v.  Dolby,  3  Vc.s. 
10,  will    show    that  judges    have    not    always    accurately 


CUSTIS  &  WIFE  v.  POTTER'S  ADMR.  391 

apprehended  and  appreciated  the  distinction  involved  in 
that  point,  or  the  true  ground  of  the  decision  in  the  case 
of  Ackerley  v.  Vernon,  as  that  case  did  not  turn  at  all  on 
the  relationship  in  which  the  testator  stood  to  the  legatee, 
but  was  decided  wholly  irrespective  of  that  relationship. 
That  case  is  sustained,  too,  by  the  case  of  Tyrrell  v.  Tyr- 
rell, 4  Ves.  1. 

Another  class  of  exceptions  to  the  general  rule  that  the 
legacy  does  not  bear  interest  until  it  becomes  payable,  is 
where  the  bequest  is  to  infants,  in  which  case  the  post- 
ponement of  the  payment  of  it  is  on  account  of  the  infancy 
of  the  legatee,  and  not  for  the  benefit  of  the  estate ;  and 
the  legatee  will  therefore  take  the  interest.  Tyrrell  v.  Tyr- 
rell, 4  Ves.  1 ;  2  Wms.  on  Exrs.  1025;  Mills  v.  Roberts,  5  Eng. 
Ch.  Rep.  556;  Branstrom  v.  Wilkenson,  7  Ves.  421.  Imthe 
two  cases  last  cited,  the  Court  inferred,  from  the  fact  that 
the  testator  had  appointed  a  guardian  or  trustee  for  the 
infant  in  the  meanwhile,  that  he  intended  the  infant  should 
have  the  benefit  of  the  interest.  Leslie  v.  Leslie,  10  Eng. 
Ch.  Rep.  384 ;  Boddy  v.  Dawes,  15  Ibid.  363.  Now,  I  cite 
all  these  cases  to  show,  that  although  in  a  bequest  to  an 
infant,  infancy  of  itself  would  not  suffice  to  take  the  case 
out  of  the  operation  of  the  general  rule  in  regard  to  the 
interest,  when  the  payment  of  the  legacy  is  postponed  to  a 
future  period,  yet  the  Court  will  incline  in  such  cases  to 
lay  hold  of  any  indication  of  an  intention  on  the  part  of 
the  testator  in  the  will,  to  give  the  interest  accruing  in  the 
meanwhile  to  the  infant ;  and  all  the  cases  referred  to  will 
be  found  to  sustain  me  in  this  position.  And  were  there 
no  such  indications  in  the  will  and  codicils  before  the 
Court?  They  were  evident  in  almost  every  part  of  them. 
The  complainants  were  his  preferred  legatees.  They  were 
the  infant  children  of  a  preferred  and  deceased  nephew,  and 
were  the  objects  of  the  peculiar  affection  and  the  peculiar 
bounty  of  an  aged,  wealthy,  and  childless  uncle,  and  as 
they  were  then  of  tender  age,  it  is  but  reasonable  to  pre- 
sume that  he  intended  they  should  take  the  interest  for 
their  benefit  during  their  minority;  and  the  important  fact 


392  COURT  OP  BRBORS  AND  APPEALS. 

that  the  will  clearly  contemplates,  although  it  does  not 
positively  direct,  for  it  is  inartificially  expressed,  that  guar- 
dians shall  in  the  meantime  be  appointed  by  the  Orphans' 
Court  for  these  legatees,  but  strengthens  and  confirms  that 
presumption,  and  requires  such  a  construction  on  the  au- 
thority of  the  cases  cited. 

Comegys,  for  the  appellees :  Had  the  testator  stood  in  the 
relation  of  a  parent,  which  he  did  not,  to  these  legatees, 
there  could  be  no  controversy  between  the  parties  in  this 
case  as  to  the  appropriation  of  the  interest  in  dispute  for 
their  benefit.  They  were,  however,  but  the  children  of  a 
deceased  nephew  of  the  testator,  and  were  never  treated, 
or  regarded  by  him  in  his  lifetime,  as  standing  in  the  rela- 
tion of  children  to  him,  and  there  is  no  allegation  or  pre- 
text contained  in  their  bill  of  complaint,  to  warrant  the 
Court  in  presuming  for  a  moment  that  any  such  relation 
ever  subsisted  between  them.  The  decision  in  the  case  of 
Achaiey  v.  Vernon,  so  much  relied  upon  on  the  other  side, 
was  based  alone  upon  this  circumstance  in  the  case,  and 
not  upon  the  ground  that  the  legacies  were  to  be  severed 
from  the  residue  of  the  estate  before  they  became  payable, 
as  appears  from  the  report  of  it  in  3  Bro.  Part  Cases,  85. 
Where  the  legacy  is  to  be  carved  out  of  a  particular  debt 
due  the  testator,  or  is  to  be  taken  out  of  a  particular  fund, 
there  it  is  specific  in  its  nature,  and  the  consequence  of  the 
severance  attaches  and  controls  the  disposition  of  the  in- 
terest accruing  in  the  meantime  on  the  legacy,  and  gives 
it  to  the  legatee.  But  where  it  is  not  so  given,  but  is  to  be 
taken  out  of  the  great  or  general  tree  of  estate,  there  is  no 
ground  to  sever  a  branch  from  it  in  favor  of  a  general 
legatee,  and  the  principle  does  not  apply.  Heath,  v.  Perry, 
3  AtL  103.  Where  there  is  a  general  bequest,  or  of  a  sum 
of  money  payable  at  a  future  time,  it  bears  no  interest 
until  that  time,  because  it  cannot  be  demanded  before  that 
time,  and  as  interest  is  awarded  by  way  of  compensation 
for  the  unlawful  detention  of  the  debt,  until  it  can  be  de- 
manded, interest  will  not  accrue  to  the  legatee,  unless  it  is 


CUSTIS  A  WIFE  v.  POTTER'S  ADMR  393 

given  by  the  will  in  the  meanwhile.  There  is  bnt  one  ex- 
ception to  this  rule  in  regard  to  a  general  legacy,  and  that 
is  in  the  case  before  adverted  to,  where  the  testator  stands 
in  loco  parentis  as  to  the  legatee,  and  is  presumed  to  have 
voluntarily  assumed  the  obligations  as  well  as  the  relation 
of  a  parent  towards  the  child.  The  case  before  referred  to, 
cited  on  the  other  side,  has  never  been  followed  on  any 
other  ground  than  this.  Criekett  v.  Dolby,  3  Ves.  10,  2  Wms. 
Exrs.  1024;  Hurl  v.  Greenbank,  3  Atk.  679;  Boddy  v.  Dawes, 
15  Kng.  Ch.  Rep.  363.  In  the  last  case  the  interest  was  held 
to  be  payable  to  the  legatee,  on  the  ground  that  there  was 
an  intention  apparent  in  the  will  that  he  should  have  it. 
Where  the  legacy  is  specific,  as  of  stock,  the  legatee  will 
take  the  interest  as  part  of  the  fund,  but  not  where  the 
legacy  is  general.  Where  the  interest  is  claimed  for  the 
legatee  upon  a  general  legacy  payable  infuturo,  it  will  be 
found  to  have  been  allowed  from  an  intention  so  expressed 
by  the  testator,  or  from  terms  employed  in  the  will  which 
indicated  such  an  intention.  Mills  v.  Roberts,  5  Eng.  Ch. 
Rep.  556 ;  Ijtslk  v.  I^eslie,  10  Eng.  Ch.  Rep.  384.  But  there 
is  no  such  intention  apparent  upon  the  will  of  the  testator 
in  this  case,  and  there  is  not  one  word  employed  from 
which  such  a  purpose  on  his  part  can  be  implied.  The 
learned  counsel  for  the  appellants  had  maintained  that  they 
were  the  peculiar  objects  of  his  affection  and  the  principal 
objects  of  his  bounty ;  but  such  was  not  the  case ;  on  the 
contrary,  the  trust  established  in  it  for  the  benefit  of  the 
poor  of  Kent  County  was  the  great  and  paramount  object 
of  his  will;  and  he  never  intended  that  these  legatees,  who 
stood  merely  in  the  relation  of  nieces  and  nephews  in  the 
second  degree  to  him,  shonld  be  maintained  in  the  mean- 
time until  their  respective  legacies  had  become  payable, 
out  of  the  interest  accruing  upon  them.  Neither  is  there 
any  ground  for  the  assumption,  on  the  other  side,  that  the 
will  contemplates  that  guardians  in  the  meanwhile  should 
be  appointed  for  them  by  the  Orphans'  Court.  There  is, 
therefore,  no  good  ground  for  this  appeal,  and  the  decree 
of  the  Chancellor  should  be  affirmed. 

26 


394     COUET  OF  ERRORS  AND  AFPEALS. 

Bates,  in  reply  :  I  do  not  contend  that  the  bequest  of  a 
general  legacy  payable  at  a  future  time  will  necessarily 
constitute  a  severance  of  the  legacy  from  the  residue,  and 
carry  the  interest  in  the  meanwhile  to  the  legatee.  But  I 
do  maintain  that  where  the  residue  in  the  meantime  has 
to  be  disposed  of  pursuant  to  the  terms  of  the  will,  then 
the  legacy  in  point  of  fact  has  to  be  severed  from  the  bulk 
of  the  estate,  and  it  then  assumes  the  character  of  a  fund 
set  apart  for  the  specific  purpose  of  paying  the  legacy;  and 
then  the  question  arises,  where  is  the  interest  in  the  mean- 
while accruing  on  that  fund  to  go?  It  cannot  go  into  the 
residue,  for  that  has  been  already  ascertained  and  disposed 
of  pursuant  to  the  directions  of  the  will,  and  if  it  does  not 
go  to  the  legatee,  it  must  be  thrown  away  and  cannot  go 
to  any  one.  And  this  is  the  extent  and  effect  of  the  ruling 
in  the  case  of  Ackerley  v.  Vernon,  both  as  reported  1  Pr. 
Wms.  and  ■  in  3  Dro.  Pari.  Cases.  He  also  recited  in  sup- 
port of  the  principle  the  remarks  of  Lord  Hardwicke,  in  re- 
gard to  the  governing  circumstance  in  that  case,  in  Heath 
v.  Perry,  3  Atk.  103 ;  and  also  what  Lord  Redesdale  said  of 
the  same  case  in  Ellis  v.  Ellis,  1  Sch.  <f  Lefr.  5. 

Gilpin,  Ch.  J.,  announced  the  opinion  of  the  Court. 

Benjamin  Potter,  by  the  sixth  item  of  his  will,  dated 
the  twenty-sixth  of  July,  A.D.  1839,  bequeathed  to  his 
nephew,  Benjamin  Totter,  four  thousand  dollars;  to  his 
nephew,  Edmond  Upsher  Potter,  one  thousand  dollars; 
and  to  his  two  nieces,  Sarah  Tabitha  Potter  and  Virginia 
Potter,  five  hundred  dollars  each;  and  then  proceeds,  in 
the  same  item,  to  say  that,  "  All  the  sums  bequeathed  to 
the  four  above-named  legatees,  to  be  paid  by  my  executors 
or  guardians,  appointed  by  the  Orphans'  Court,  to  the 
males  when  they  arrive  at  the  age  of  twenty-one  years,  and 
the  females  when  they  arrive  at  the  age  of  eighteen  years." 
By  the  second  codicil  to  his  will  the  testator  revokes  the 
legacy  of  four  thousand  dollars,  given  by  the  sixth  item 
of  his  will  to  his  nephew  Benjamin  Potter,  and  bequeaths 
the  said   four  thousand  dollars  to  his  said   nephew  and 


CUSTIS  &  WIFE  v.  POTTER'S  ADMR.  395 

nieces,  namely,  Edmond  Upsher  Potter,  Sarah  Tabitha 
Potter,  and  Virginia  Potter,  "  share  and  share  alike,  the 
same  to  be  paid  to  them  in  the  same  manner  and  at  the 
same  time  as  is  directed  and  mentioned  in  the  aforesaid 
sixth  item  of  my  said  last  will  and  testament." 

The  question  presented  by  the  bill  and  demurrer,  for 
the  consideration  of  the  Court,  is,  whether  the  legatees 
first  named,  who  are  the  complainants  in  this  case,  are 
entitled  to  interest  on  their  several  legacies  from  one  year 
after  the  death  of  the  testator,  until  they  attained  their 
respective  ages  of  eighteen  and  twenty-one  years. 

It  may  be  laid  down  as  a  general  rule,  that  a  party  is 
entitled  to  interest  on  money,  on  account  of  delay  in  the 
payment  of  the  principal  sum  or  debt.  And  in  respect  to 
legacies,  it  is  well  settled,  by  a  long  series  of  decisions, 
that  interest  is  payable  on  them  only  from  the  time  at 
which  the  principal  of  the  legacies  becomes  actually  due. 
It  is  important.,  therefore,  in  the  first  place,  to  ascertain 
the  precise  time  at  which  the  principal  becomes  payable, 
since  interest  cannot  begin  to  accrue  before  that  time. 

Specific  legacies,  or  bequests  of  a  corpus,  which,  in  con- 
templation of  law,  are  considered  as  severed  and  separated 
from  the  bulk  of  the  testator's  property  by  the  will  itself, 
carry  their  product  or  interest  from  the  testator's  death, 
unless  the  will  contains  directions  to  the  contrary. 

General  pecuniary  legacies,  where  no  time  of  payment 
is  appointed  by  the  testator,  are  governed  by  a  different 
rule.  They  are  not  due  or  payable  until  one  year  from 
the  death  of  the  testator,  and  do  not,  therefore,  carry  in- 
terest until  after  the  expiration  of  that  time,  since  interest 
in  .such  cases  is  only  allowed  for  delay  of  payment,  and 
there  can  be  no  such  delay  until  after  the  year  is  elapsed. 

With  respect  to  general  pecuniary  legacies,  when  the 
time  of  payment  is  named  by  the  testator,  there  is  no 
general  rule  more  uniformly  laid  down  by  the  elementary 
writers,  or  better  settled  by  adjudged  eases,  both  in  this 
country  and  in  England,  than  that  such  legacies  do  not 
carry  interest  before  the  arrival  of  the  appointed  period  of 


396     COURT  OF  ERRORS  AJSD  APPBAL& 

payment,  notwithstanding  the  legacies  are  Tested.  Such, 
then,  being  the  general  role,  recognized  by  all  the  cases 
cited  in  the  argument,  or  which  can  be  found  in  die  books, 
we  proceed  to  consider  the  exceptions  to  it.  What  are  they? 
The  exceptions  to  the  role  are  to  be  found  in  cases  where 
the  legatee  is  a  ckUd  of  the  testator,  or  one  towards  whom 
he  has  placed  himself  in  loco  parentis;  or  where,  from  the 
terms  of  the  will,  it  is  manifest  the  testator  intended  to 
give  interest  before  the  time  for  payment  of  the  principal. 
In  the  absence  of  such  intention  expressed  on  the  ace  of 
the  will,  or  clearly  implied  from  its  terms,  the  legacy  does 
not  carry  interest. 

In  the  case  of  a  child  of  the  testator,  or  one  towards 
whom  he  stands  in  the  place  of  a  parent,  interest  is  given 
in  the  meanwhile  upon  the  legacy,  by  way  of  maintenance, 
where  the  child  has  no  other  provision;  for  it  is  not  to  be 
presumed  that  the  parent,  in  such  a  ease,  was  so  regardless 
of  the  moral  obligations  resting  upon  him,  as  to  leave  the 
child  in  a  state  of  destitution  in  the  meantime.  Cases 
of  intention,  apparent  upon  the  face  of  the  will,  to  give 
interest  from  the  death  of  the  testator,  speak  for  them- 
selves. Something  must  be  said  in  the  will  that  shows 
such  intention ;  otherwise  such  interest  can  not  be  allowed. 

Do  the  legatees,  in  this  case,  bring  themselves  within 
either  of  these  exceptions'?  If  they  do  not,  what  ground 
have  they  to  stand  on? 

The  bequests  in  question  present  the  ordinary  cases  of 
vested  legacies  payable  at  a  future  day;  namely,  when  the 
testator's  nephew  should  arrive  at  the  age  of  twenty-one 
years,  and  when  his  nieces  should  arrive  at  the  age  of 
eighteen  years.  The  legatees  are  not  children  of  the  tes- 
tator, nor  persons  towards  whom  he  had  placed  himself  in 
loco  parentis.  They  are  not  residuary  legatees.  There  is 
no  direction  in  the  will  for  the  payment  of  interest,  nor 
anything  in  the  clauses  containing  the  bequests  in  ques- 
tion, nor  in  the  manner  in  which  the  residue  of  the  estate 
is  disposed  of,  nor  in  any  other  provision  of  the  will,  from 
which  it  can  be  fairly  or  reasonably  inferred  that  the  tes- 


CUSTTS  ft  WIPE  v.  POTTER'S  ADMR.  397 

tator  intended  to  give  interest.  It  may  be  proper  to  advert 
for  a  moment  to  the  cases  which  have  been  cited  in  the 
argument. 

The  case  of  Hemlk  v.  Perry,  3  Atk.  101,  is  anything  bat 
an  authority  in  iavor  of  the  complainants.  Lord  Ilard- 
wieke  there  lays  down  the  rale  in  express  terms,  in  the 
case  of  a  vested  legacy  payable  at  twenty-^me,  that  "  it  shall 
not  carry  interest  unless  something  is  said  in  the  will  that 
shows  the  testator  intended  to  give  interest,  in  the  mean- 
time;" and  he  decreed  that  the  residuary  legatee  should 
take  the  interest.  The  same  doctrine  is  rally  recognized 
as  of  binding  authority,  in  Crickett  v.  Dolby,  3  Ves.  10;  and 
in  Tyrrd  v.  lyrrel,  4  Ves.  L 

The  eases  of  Chaworth  v.  Hooper,  1  Bro.  C  R.  82,  and 
Ratio-  v.  Butler,  3  Atk.  ©0,  were  bequests  of  the  "  reside," 
and  are  properly  distinguishable  from  the  present  case;  for 
a  bequest  of  the  residue,  although  made  payable  in  future, 
carries  the  interest  The  bequest  in  the  case  of  Banstrom 
v.  WSLkmsom,  7  Ves.  421,  which  was  of  M  one  dock  share  in 
the  present  new  dock,  at  Kingston-upon-Hull,"  was  spe- 
cific in  its  character,  and  eomes  within  the  rule  in  relation 
to  specific  legacies. 

The  cases  of  Mills  v.  Roberts,  5  Eng.  C.  R.  557,  Leslie  v. 
J^eslie,  10  Eng.  C.  R.  384,  and  of  Boddy  v.  Dawes,  15  Eng. 
(1  R.  363,  are  all  cases  where  the  intention  of  the  testator 
to  give  interest  may  be  feirly  and  reasonably  implied.  In 
the  language  of  Lord  Hardwicke,  as  used  in  the  case  of 
Heath  v.  Perry,  there  is  "  something  in  the  will  that  shows 
the  testator's  intention  to  give  interest." 

The  case  of '  Ackerley  v.  Vernon,  1  Pr.  Wms.  783,  rests  on  its 
own  peculiar  circumstances.  Lord  Hardwicke  was  dissatis- 
fied with  it;  and  Lord  Redesdale,  in  Ellis  v.  EUis,  1  Scho.  <f 
]jef.  i,  calls  it  a  singular  case,  and  seems  to  have  doubted 
it-  And  although  it  has  never  been  overruled,  still  it  has 
never  been  followed,  upon  the  ground  taken  by  Lord  Mac- 
clesfield, that  the  legacy  was  severed  from  the  bulk  of  the  cstatt . 
It  has  been  sustained,  however,  by  later  decisions,  upon  the 


398  COURT  OF  ERRORS  AND  APPEALS. 

ground  of  the  testator's  having  placed  himself  in  loco  pa- 
rentis to  the  legatee. 

We  have  been  unable  to  discover  anything  in  the  will 
and  codicils  which  should  withdraw  this  case  from  the 
operation  of  the  general  rule  denying  interest  on  general 
legacies  payable  in  futuro ;  and  we  therefore  affirm  the 
decree  of  the  Chancellor  in  all  respects,  and  remand  the 
record  to  the  Court  below. 


John  Doe,  on  the  demise  of  Letttia  Harrington,  v.  Rich- 
ard Roe,  casual  ejector,  and  John  W.  Dill,  Tenant  in 
possession. 

A  devise  to  a  son  of  the  testator  of  a  farm  or  tract  of  land  by  his  paying 
a  grandson  of  the  testator  two  hundred  and  fifty  dollars,  without  in- 
terest, when  he  shall  arrive  at  the  age  of  twenty-one  years,  which  the 
said  farm  shall  be  bound  for,  to  him  the  said  son  and  his  heirs  forever, 
but  if  the  said  son  should  die  leaving  no  lawful  heir  of  his  body  who 
shall  arrive  to  the  age  of  twenty-one  years,  then  the  farm,  with  the 
aforesaid  condition,  the  testator  willed  and  bequeathed  to  the  remain- 
der of  his  sons  then  living,  without  words  of  inheritance  or  limitation, 
is  a  devise  in  fee  both  to  the  first  devisee  and  to  the  remaindermen, 
because  of  the  charge  upon  them,  in  respect  of  the  farm,  of  a  gross  sum 
to  be  paid  to  the  testator's  grandson. 

A  general  devise,  without  words  of  inheritance  or  limitation,  carries  but 
a  life  estate  to  the  devisee  ;  but  this  rule  being  one  of  technical  restric- 
tion, is  subject  to  the  following  exceptions.  If  there  be  no  residuary 
devise  in  the  will,  and  the  intention  of  the  testator  clearly  appears  to 
dispose  of  the  whole  of  his  estate,  a  general  devise  will  be  enlarged  to 
a  fee  to  carry  out  that  intent,  if  it  can  be  applied  to  the  devise  in  ques- 
tion. Where  tin;  testator  uses  terms  which  apply  to  his  interest  in  the 
land,  and  not  merely  to  the  land  itself,  a  general  devise  of  such  interest 
will  carry  a  fee,  if  such  was  his  interest  in  the  premises  ;  as  when  he 
devises  his  "  estate''  at  such  a  place;  his  "  right.''  or  his  "part"  of  an 
estate  held  with  others,,  or  his  "share,''  referring  to  his  interest  and 
not  to  the  corpus  of  the  property.  But  where  the  term  employed  ap- 
plies more  properly  to  the  land  itself,  than  to  his  interest,  or  estate  in 
it,  a  general  devise  carries  but  a  life  estate;  as  in  a  devise  of  ''my 
house,"  or  "farm,"  or"  part  of  my  house,"  "farm,"  or"  plantation," 
at  such  a  place.    If,  however,  there  be  a  charge  on  the  devisee  in  respect 


DOE  d.  HARRINGTON  v.  DILL.  399 

of  the  land  devised  to  him,  and  not  merely  a  charge  on  the  land  itself, 
it  will  enlarge  the  general  devise  to  a  fee;  for  otherwise,  the  devise 
might  prove  injurious  to  the  devisee.  The  devise  above  stated  falls 
under  this  last  exception,  and  makes  the  devise  over  on  the  happening 
of  the  contingency  mentioned,  to  the  remaining  sons  of  the  testator 
then  living,  a  devise  in  fee,  and  consequently  is  an  absolute  defeat  of 
the  estate  first  given  to  the  son  in  the  preceding  devise,  which  the 
Court  construed  to  be  a  devise  to  him  in  fee  simple,  defeasible  on  his 
death  without  lawful  heir  of  his  body  who  should  attain  full  age,  with 
an  executory  devise  over  in  fee  to  the  remainder  of  the  sons  of  the  tes- 
tator then  living. 
In  another  item  of  his  will,  the  testator  devised  to  his  two  sons,  N.  and 
R.,  a  tract  of  land,  to  them  and  their  heirs  forever,  but  if  either,  or 
both  of  them  should  die  leaving  no  lawful  heir  of  their  body  who  should 
arrive  to  the  age  of  twenty-one  years,  then  the  part  or  parts  of  the 
aforesaid  tract  of  land,  he  willed  and  bequeathed  to  the  remainder  of 
his  sons  then  living.  In  another  item  of  his  will  he  devised  to  his  son 
J.  a  lot  of  ground,  containing  thirty-five  or  forty  acres,  to  him  and  his 
heirs  forever,  but  if  the  said  J.  should  die  leaving  no  lawful  heir  of  his 
body  who  should  arrive  to  the  age  of  twenty-one  years,  he  willed  and 
bequeathed  the  said  lot  to  the  remainder  of  his  sons  then  living  ;  and 
in  another  item  he  devised  to  his  sons  S.  and  H.  his  home  farm,  to  have 
possession  after  the  death  of  their  mother,  to  them  and  their  heirs  for- 
ever, and  then  added,  "  I  also  direct  my  said  sons  S.  and  H.  to  pay  my 
grandson  J.  L.  five  hundred  dollars,  without  interest,  when  he  shall 
arrive  to  the  age  of  twenty-one  years,  for  which  the  said  farm  shall  be 
bound  ;  but  if  either  or  both  of  them  should  die  having  no  lawful  heir 
of  their  body  who  shall  arrive  to  the  age  of  twenty-one  years,  then  the 
part  or  parts  of  the  aft>resaid  farm  I  will  and  bequeath  to  the  remain- 
der of  my  sons  then  living."  The  residuary  clause  of  the  will  was  as 
follows:  "  I  will  and  bequeath  all  the  balance  of  my  estate,  after  my 
just  debts  are  paid,  to  be  divided  among  my  heirs  as  the  law  directs." 
Held,  that  the  construction  of  these  three  items  of  the  will  was  equally 
governed  by  the  principles  before  stated,  and  that  they  each  contained 
a  devise  to  the  first  devisees  in  fee  conditional,  with  an  executory  de- 
vise for  life  to  the  devisees  over.  As  to  the  question  what  became  of 
the  ultimate  interest  in  the  premises  after  these  life  estates  were  deter- 
mined, it  was  held  by  a  majority  of  the  Court  that  the  limitations  to 
the  fir>t  devisees,  being  in  fee  conditional  and  defeasible,  the  executory 
devises  over  for  life  on  the'  happening  of  the  contingencies  upon  which 
they  were  limited  over  to  the  remaining  sons  of  the  testator  then  living, 
absolutely  defeated  them  and  were  in  total  and  not  partial  exclusion  of 
tlie  same  :  that  it  could  not  be  considered  that  they  were  in  derogation 
merely  of  the  preceding  devise.-  in  tee  to  the  first  takers,  and  only  im- 
paired and  abridged  their  estates  jto  tatito,  and  on  the  expiration  of 
the  life  e.-tates  limited  over,  tin;  lands  reverted  in  fee  to  the  heirs  at 
law  of  the  first  devisees  ;   on   the  contrary,  the  limitations  over  for  life 


400  COURT  OF  ERRORS  AND  APPEALS. 


of  the  pmd- 
«f  the  fife 


ia  the  viB  *•  the  has  ft  lev  of  the 


This  was  an  action  of  ejectment  from  the  Superior  Court 
in  Kent  Coontj,  and  came  up  on  a  ease  stated  and  ques- 
tions of  law  reserved  for  a  hearing  before  all  the  judges  dt 
baatL  There  was  a  series  of  actions  and  eases  stated  of  the 
same  nature,  which  were  brought  up  with  it  on  questions 
of  law,  reserved  at  the  same  term  and  to  be  beard  in  like 
manner;  all  of  which  depended  upon  the  will  of  Isaac 
Graham,  deceased,  and  involved  more  particularly  the 
construction  of  the  devises  to  his  sons  Nathaniel  and 
Robert,  William,  Isaac  and  Samuel  and  Henry  Graham, 
contained  in  the  tiurtL,  femrtk,  tumlk  and  tcm&  hems  of  it  re- 
spectively, which  were  as  follows  :  ■*  Item  third.  I  will  and 
bequeath  to  my  two  sons  Nathaniel  and  Robert,  all  that 
tract  or  parcel  of  land  whereon  there  is  a  brick  house,  for- 
merly owned  by  Hinson  Graham,  containing  283  acres 
more  or  less,  with  the  improvements  thereon,  to  tie  equally 
divided  as  to  value,  but  Nathaniel  to  have  the  buildings, 
to  them  and  their  heirs  forever ;  but  if  either  or  both  af 
them  should  die.  leaving  no  lawful  heir  of  their  body  who 
shall  arrive  to  the  age  af  twenty-one  years,  then  the  part 
or  parts  of  the  aforesaid  tract  af  land  I  will  and  bequeath 
to  the  remainder  of  my  sons  then  living.  Item  fourth.  I 
will  and  bequeath  to  my  son  William,  the  farm  or  tract  of 
land  where  my  son  Samuel  now  lives,  containing  ninety- 
three  acres,  more  or  less,  with  the  improvements  thereon, 
by  his  paying  Edmund  Graham,  my  grandson,  two  hundred 
and  fifty  dollars,  without  interest,  when  the  said  Edmund 
shall  arrive  at  the  age  of  twenty-one  years,  which  the  said 
farm  shall  be  bound  for.  to  him  said  William  and  his  bear? 
forever:  but  if  the  said  William  should  die  leaving  no 
lawful  heir  of  his  body  who  shall  arrive  to  the  age  af 
twenty -one,  then  the  farm  with  the  aforesaid  conditions  I 
will  and  bequeath  to  the  remainder  af  my  sons  then  living. 
Item  ninth.  I  will  and  bequeath  to  my  son  Isaac  a  lot  or 


DOB  <L  HARBENGTON  t.  DELL.  401 

parcel  of  land,  beginning  at  the  road  leading  from  Vernon 
to  Greensville,  midway  between  the  boose  where  Eh  Pratt 
now  lives  and  the  boose  where  Nathaniel  Graham  now 
fives,  at  the  beginning  of  the  lot  devised  and  described  in 
item  second  of  this  will,  and  running  with  said  lot  along 
the  fence  to  the  back  of  the  garden,  then  with  the  fence 
along  the  back  of  that  garden,  and  the  garden  where  Ma- 
looey  now  fives,  to  the  garden  of  the  white  house,  then 
running  square  to  the  left,  and  running  down  to  the  ditch 
to  the  road  leading  to  Vernon  to  a  bridge,  then  leaving 
said  lot  described  in  item  second,  and  turning  and  running 
with  the  road  from  Vernon  towards  the  brick  house  men- 
tioned in  hern  third,  and  running  with  the  tract  described 
in  said  hem  to  a  bridge  and  small  ditch  near  the  barn, 
then  turning  and  running  down  small  ditch  to  a  fence  and 
larger  ditch  on  the  division  line  between  my  land  and 
Emory  Graham's,  then  leaving  the  tract  described  in  item 
third,  and  running  with  said  division  fine  into  the  road  at 
Vernon,  and  then  with  said  road  to  the  place  of  beginning, 
containing  thirty-five  or  forty  acres,  more  or  less,  with  the 
improvements  thereon,  to  him  my  son  Isaac,  and  his  heirs 
forever ;  but  if  said  Isaac  should  die  leaving  no  lawful  heir 
of  his  body  who  shall  arrive  to  the  age  of  twenty-one 
years,  then  the  said  lot  or  parcel  of  land  I  will  and  bequeath 
to  the  remainder  of  my  sons  then  living.  Item  tenth.  I 
will  and  bequeath  to  my  two  sons  Samuel  and  Henry,  all 
of  my  home  farm  where  I  now  live,  containing  two  hundred 
and  forty  acres,  more  or  less,  with  the  improvements 
thereon,  to  have  possession  of  after  the  death  of  my  beloved 
wife  Rnth,  their  mother,  and  to  be  divided  equal  according 
to  value.  I  also  direct  the  aforesaid  Samuel  and  Henry 
to  pay  my  grandson  Jacob  Lewis  five  hundred  dollars, 
without  interest,  when  said  Jacob  shall  arrive  to  the  age 
of  twenty-one  years,  for  which  the  said  farm  shall  be 
bound,  to  the  said  Samuel  and  Henry  and  their  heirs  for- 
ever; bat  it"  either  or  both  of  them  should  die  leaving  no 
lawful  heir  of  their  body  who  shall  arrive  to  the  age  of 
twenty-one  years,  then  the  part  or  parts  of  the  aforesaid 


402     COUKT  OF  EKEOKS  AND  APPEALS. 

farm  I  will  and  bequeath  to  the  remainder  of  my  sons 
then  living."  The  residuary  devise,  or  item  twelfth  of  the 
will,  was  as  follows :  "  I  will  and  bequeath  all  the  balance 
of  my  estate,  after  my  just  debts  and  liabilities  are  paid,  to 
be  divided  among  my  heirs  as  the  law  directs." 

The  series  of  cases  involving  the  construction  of  the 
several  devises  above  stated,  were  argued  together  on  the 
following  statement  of  facts  agreed  upon  by  the  counsel  of 
the  respective  parties.  The  testator  died  in  the  month  of 
February,  1845,  leaving  to  survive  him  the  following  heirs- 
at-law :  six  sons,  to  wit,  Henry,  William,  Isaac,  Nathaniel, 
Robert,  and  Samuel,  and  two  daughters,  Letitia  Harring- 
ton, widow  of  Henry  Harrington,  deceased,  and  Mary  the 
wife  of  Benjamin  Callaway,  and  two  grandsons,  Edmund 
Graham,  the  only  child  of  his  deceased  ,son  Jacob,  and 
Jacob  G.  Lewis,  the  only  child  of  a  deceased  daughter, 
Ann  Lewis.  Henry,  the  son  and  devisee  of  the  testator 
named  in  the  tenth  item  of  his  will,  died  in  May,  1845, 
without  issue.  William,  the  son  and  devisee  of  the  testa- 
tor named  in  the  fourth  item  of  the  will,  died  in  Decem- 
ber, 1845,  without  issue.  Isaac,  the  son  and  devisee  named 
in  the  ninth  item  of  the  will,  died  in  May,  1849,  without 
issue.  Robert,  the  son  and  devisee  named  in  the  third 
item  of  the  will,  died  in  May,  1850,  also  without  issue. 
Nathaniel,  the  son  and  devisee  named  in  the  same  item  of 
the  will,  died  in  November,  1846,  leaving  two  children, 
George  and  Ann,  of  whom  the  latter  is  dead  without  issue, 
George  still  surviving;  and  Samuel,  the  son  and  devisee 
named  in  the  tenth  item  of  the  will,  and  who  was  the  last 
survivor  of  the  six  sons  of  the  testator,  died  in  July,  1854, 
leaving  six  children,  of  whom  five  are  still  living.  Ed- 
mund Graham,  the  grandson  of  the  testator,  died  in  Feb- 
ruary, 1855,  without  issue,  but  leaving  brothers  and  sisters 
of  the  half-blood  as  his  heirs-at-law.  Letitia  Harrington, 
lessor  of  two  of  the  plaintiffs,  and  Mary  Callaway,  wife  of 
Benjamin  Callaway,  also  lessors  of  two  of  the  plaintiffs, 
and  daughters  of  the  testator,  and  Jacob  G.  Lewis,  son  of 
Ann  Lewis,  deceased,  and  grandson  of  the  testator,  are  still 


DOE  d.  HARRINGTON  v.  DILL.  403 

living.  Since  the  death  of  Henry,  the  right,  title  and  inte- 
rest of  William,  Nathaniel,  Isaac,  and  Robert,  in  the  undi- 
vided half  of  the  premises  devised  to  him  as  aforesaid,  has 
become  legally  and  duly  vested  in  Samuel,  by  sundry  con- 
veyances. Samuel  also  paid  the  legacy  of  live  hundred  dol- 
lars, bequeathed  to  Jacob  G.  Lewis  to  be  paid  by  Samuel  and 
Henry,  on  the  16th  day  of  January,  1849.  The  defendants 
in  the  series  of  actions  referred  to,  were  tenants  of  distinct 
parts  of  the  several  premises  devised  in  the  aforesaid  items 
of  the  will,  and  hold  the  same  under  the  heirs-at-law  of  the 
said  Samuel,  who  is  now  dead.  All  the  heirs-at-law  of  the 
testator  were  not  parties  to  the  several  actions  above  re- 
ferred to,  the  several  cases  stated  embracing  only  the  said 
Letitia  Harrington,  Jacob  G.  Lewis,  and  Benjamin  Calla- 
way and  Mary  his  wife,  as  the  real  party  plaintiff  in  each 
of  them  respectively.  The  suits  were  consequently  for  the 
recovery  of  their  several  undivided  shares  as  a  portion  of 
the  heirs-at-law  of  the  testator,  in  the  several  tracts  of  laud 
and  premises  devised  as  aforesaid. 

Fisher,  for  the  plaintiffs :  We  consider  the  devises  to  the 
sons  Robert  and  Isaac  are  substantially  the  same,  and  in- 
volve the  same  question,  and  contend  that  the  devises  over 
after  the  devises  to  them,  being  of  an  indefinite  estate,  are 
devises  for  life  only ;  as  a  devise  of  land  without  limitation 
is  a  devise  for  life  merely,  at  common  law,  although  the 
statute  enacted  since  the  death  of  the  testator  has  modified 
and  reversed  this  rule  of  construction.  Gaskin  v.  Gaskin, 
Cowp.  657 ;  Uoicers.  v.  Blacket,  Ibid.  235  ;  Connovay  v.  Piper, 
3  Harr.  482.  The  four  several  clauses  and  devises  con- 
tained in  the  will,  as  set  forth  in  the  case  stated,  being 
separate  and  distinct  from  each  other,  no  other  parts  of 
the  will  can  be  called  in  to  aid  in  the  construction  of  them, 
according  to  an  equally  familiar  and  well-settled  principle 
of  testamentary  interpretation;  and  this  is  all  that  it  is 
necessary  to  say  at  present  in  regard  to  the  devises  to 
Robert  and  Isaac. 

The  devises  to  the  other  two  sons,  William  and  Henry, 


404  COURT  OF  ERRORS  AND  APPEALS. 

are  different,  inasmuch  as  the  land  devised  to  the  latter  is 
charged  with  a  legacy  of  five  hundred  dollars  bequeathed 
to  the  grandson,  Jacob  Lewis;  hut  this  legacy  is  expressly 
charged  by  the  terms  of  the  will  on  the  land  devised,  and 
a  charge  on  the  land  simply  does  not  enlarge  a  devise  for 
life  to  an  estate  in  fee.  Saws  v.  Garlick,  14  Exch.  Rep.  698. 
But  it  is  otherwise,  if  the  charge  is  personal,  that  is  to  say, 
upon  the  devisee.  It  is  well  settled,  however,  that  if  the 
charge  upon  the  estate  is  contingent  merely,  it  does  not 
enlarge  a  devise  for  life  to  a  devise  in  fee.  Jackson  d.  Har- 
ris v.  Harris,  8  Johns.  141.  The  farm  devised  to  William 
is  charged,  in  like  terms,  with  a  legacy  of  two  hundred  and 
fifty  dollars  bequeathed  to  the  grandson,  Edmund  Gra- 
ham. But  both  of  these  legacies  are  contingent,  being  be- 
queathed to  the  respective  legatees  by  the  terms  of  the  will, 
"when  they  should  arrive  to  the  age  of  twenty-one  years;" 
and  being  of  that  character,  they  cannot,  as  I  have  before 
said,  enlarge  the  devises  for  life  to  William  and  Henry, 
to  devises  in  fee.  Jackson  v.  Martin,  18  Johns.  83.  It  is 
true  that  the  language  of  the  fourth  item  of  the  will  con- 
taining the  devise  to  William  is  somewhat  different  from 
that  in  which  the  tenth  item  containing  the  devise  to 
Samuel  and  Henry  is  worded;  but  supposing  the  charge 
in  the  fourth  item,  in  the  first  instance,  to  be  personal  to 
William  and  not  a  charge  on  the  land  in  his  hands,  it  cer- 
tainly was  not  so  as  to  the  remaindermen,  the  remaining 
sons  of  the  testator  then  living,  to  whom  it  was  devised 
over  after  his  death  without  lawful  children;  for  the  terms 
of  the  will  in  this  respect  are  :  "Then  the  farm,  with  the 
aforesaid  conditions,  I  will  and  bequeath  to  the  remainder 
of  my  sons  then  living;"  which  clearly  charges  the  land,  in 
their  hands  at  least,  with  the  legacy  to  the  grandson,  Kd- 
mund  Graham.  I  have  already  remarked  that  these  several 
devises  being  contained  in  separate  and  distinct  items  of 
the  will,  their  meaning  and  construction  must  be  ascer- 
tained and  determined  without  any  reference  to  each  other, 
and  it  is  a  rule  equally  established  that  the  heirs-at-law  are 
not   to   be  disinherited   unless  by  words  of  limitation,  or 


DOE  d.  HARRINGTON  v.  DILL.  405 

by  expressions  which  directly  or  by  inference  beyond  all 
doubt  show  an  intention  to  give  an  estate  in  fee  to  the 
devisee.  Right  d.  Complon  v.  Compton,  9  East,  267.  There 
being  no  such  words  of  limitation,  or  expressions  which 
indicate  an  intention,  in  any  of  the  items  in  question,  to 
give  an  estate  in  fee  to  any  of  the  devisees  in  remainder, 
and  the  sons  named  in  the  will,  and  living  at  the  time  it 
was  drafted,  not  taking  a  fee  under  the  devises  to  them, 
either  by  the  limitations  of  the  devises  or  the  effect  of  the 
charges  accompanying  them,  the  plaintiffs  claim  their  re- 
spective shares  in  the  several  tracts  of  land  and  premises 
in  question,  in  fee,  as  heirs-at-law  of  the  testator  under  the 
twelfth  or  residuary  item  of  the  will,  which  disposes  of  all 
the  balance  of  his  estate  to  be  divided  among  his  heirs  as 
the  law  directs. 

Comegys,  for  the  defendants:  The  devise  in  the  third  item 
of  the  will  to  the  sons  Nathaniel  and  Robert,  and  the  de- 
vise in  the  tenth  item  to  the  sons  Samuel  and  Henry,  were 
devises  in  fee,  with  executory  devises  over  in  fee,  on  their 
death  without  lawful  children,  to  the  remaining  sons  of  the 
testator  then  living;  and  on  the  death  of  Henry  without 
issue  during  the  lives  of  his  five  brothers,  they  took  an 
estate  in  fee  in  the  part  so  previously  devised  to  him. 
Likewise,  on  the  death  of  Robert  without  issue,  leaving  only 
his  brother  Samuel,  the  latter  took  an  estate  in  fee  in  the 
part  so  devised  to  Robert.  Peppercorn  et  al.  v.  Peacock,  42 
Eng.  C.  L.  R.  192;  Bebbetal.  v.  Penoyer  et  al,ll  East,  160; 
Paris  v.  Miller,  5  M.  £  S.  409 ;  Doe  v.  Bacon,  4  M.  $  8.  366  ; 
Doe  v.  Fawcett  et  al,  54  Eng.  C.  L.  R.  273 ;  Knight  et  al.  v. 
SeWy,  34  Ibid.  57;  Jackson  v.  Merrill,  6  Johns.  185  ;  Jackson 
v.  Stoats,  11  Johns.  337;  Anderson  v.  Jackson,  16  Johns.  382. 

I  have  cited  all  these  eases  to  show  that  the  words  part 
or  ]>arts,  share  or  moiety,  carry  in  a  devise  over  the  same 
estate  and  interest  in  the  lands  devised  over  which  the  first 
devisee  took  in  them  under  the  devise  to  him;  such  phrases 
in  such  limitations  having  been  held,  in  all  these  eases,  to 
have  relation  to  the  interest  of  the  first  devisee  in  the  land 


406     COURT  OF  ERRORS  AND  APPEALS. 

under  the  devise  to  him,  as  well  as  the  land  itself,  and 
therefore  to  import  the  same  as  the  word  estate  in  the  limi- 
tation over  to  the  devisees  in  remainder.  According  to 
these  decisions,  if  land  is  devised  to  A.  in  fee,  and  after  his 
death,  if  he  should  die  without  leaving  heirs  of  his  body, 
his  part  to  go  to  B.,  without  words  of  limitation,  B.  will  take 
an  estate  in  fee  by  virtue  of  that  term  so  employed. 

As  to  the  legacies" charged  on  the  parts  devised  to  Wil- 
liam, and  to  Samuel  and  Henry,  the  former  was  a  personal 
charge  on  William,  and  is  also  charged  on  the  remainder- 
men to  whom  his  share  is  limited  over,  and  this  enlarges 
the  devise  over  to  them  to  a  fee ;  because  the  land  is  de- 
vised over  to  them  upon  the  condition  that  they  pay  the 
legacy.    2  Jarm.  on  Wills,  171. 

But  if  the  brothers  who  survived  Henry  took  but  estates 
for  life  in  the  part  devised  to  him  in  the  tenth  item  of  the 
will,  then  the  devise  in  fee  to  him  in  the  preceding  clause 
of  that  item,  was  only  impaired  and  abridged  pro  tanto,  and 
Henry,  the  original  devisee,  took  whatever  interest  and 
estate  in  the  part  so  devised  to  him,  which  the  five  sur- 
viving brothers  were  not  entitled  to  under  the  executory 
devise  over  to  them.  1  Jarm.  on  Wills,  782,  78G;  Prest.  on 
Titles,  139;  Jackson  v.  Noble,  2  Keen,  590;  Hanbury  v.  Coclce- 
rell,  1  JMs  Abr.  835 ;  Whitlell  v.  Dudin,  2  Jac.  $  Walk.  279  ; 
Hulme  v.  Ilulmc,  9  Sim.  644 ;  Sturgis  v.  Pearson,  4  Madd. 
411 ;   Phipps  v.  Akers,  43  Eng.  C.  L.  R.  569. 

James  A.  Bayard,  on  the  same  side  :  The  testator  devises 
to  his  six  sons,  all  in  absolute  fee,  with  executory  devises 
over  on  certain  contingencies.  The  third,  fourth,  ninth 
and  tenth  items  of  the  will  are  the  clauses  in  controversy. 
The  language  of  the  devises  to  Nathaniel  and  Robert  and 
to  Samuel  and  Henry  is  different  from  the  language  em- 
ployed in  the  devises  to  William  and  Isaac;  and  I  do  not 
think  the  devise  to  the  latter  in  the  ninth  item  of  the  will 
is  in  fee,  but  will  show  that  that  is  not  material.  Technical 
rules  of  construction  in  such  cases  have  been  much  relaxed 
in  modern  times,  and  the  courts  will  now  lay  hold  of  many 


DOE  d.  HAERINGTON  v.  DILL.  407 

more  words  to  effect  the  intention  of  the  testator  than 
formerlv;  and  hence  the  numerous  decisions  which  had 
been  cited  by  his  colleague,  in  which  the  courts  had  held 
that  the  words  part,  share,  or  moiety  carried  the  interest,  or 
estate  as  well  as  the  land  itself.  If  the  devise  over  shows 
an  intent  to  give  the  estate  devised  to  the  first  taker  whieh 
was  a  fee,  the  Court  will  construe  it  to  carry  the  fee, 
although  there  are  no  words  of  limitation  in  the  devise 
over./  For,  in  this  connection,  what  is  the  meaning  of  the 
word  part,  as  referring  to  the  substance,  or  subject-matter 
of  the  previous  devise  ?  Does  it  not  naturally  and  neces- 
sarily import  the  estate  in  the  land  as  well  as  the  land 
itself?  It  certainly  should,  because  such  is  clearly  the  in- 
tention of  the  testator.    Hob.  65. 

But  there  is  another  question,  which  arises  as  to  the 
devise  to  William  and  the  devise  to  Samuel  and  Henry ; 
and  that  is  -in  reference  to  the  legacies  charged  on  the 
land,  and  bequeathed  in  those  devises  to  the  grandsons, 
Edmund  Graham  and  Jacob  Lewis.  "Where  the  charge  is  in 
gross,  it  will  enlarge  a  life  estate  to  a  fee.  The  distinction 
is,  where  the  charge  is  on  the  land  solely,  it  will  not  en- 
large the  estate  devised;  but  where  the  charge  is  on  the 
person  in  relation  to  the  land,  and  notwithstanding  the 
land  may  also  be  bound  for  it,  it  will  enlarge  the  estate 
devised;  nor  is  there  any  truth  or  soundness  in  the  dis- 
tinction suggested  on  the  other  side,  that  if  the  charge  be 
contingent,  and  not  absolute,  it  will  not  have  that  effect. 
2Jarm.  on  Wills,  171.  The  words,  "with  the  aforesaid 
condition,'7  in  the  devise  over  after  the  devise  to  William, 
is  certainly  personal  to  the  devisees  over  in  that  item  of 
the  will;  for  the  devise  over  to  them  is  on  condition  that 
they  pay  the  legacy  before  charged  on  the  land.  The 
same  is  the  ease  in  the  devise  over  of  the  parts  given  in 
the  tenth  item  to  Samuel  and  Henry,  although  the  lan- 
guage is  different,  and  the  matter  not  so  clear  as  in  the 
former  devise  over  just  mentioned.  The  Court  will  ob- 
serve, that  it  matters  not  that  the  land  is  also  bound;  if 
the  charge  be  personal  to  the  devisee,  it  will  enlarge  the 


408  COURT  OF  ERRORS  AND  APPEALS. 

estate.  Peppercorn  v.  Peacock,  42  Eng.  C.  L.  R.  192.  Bat 
where  the  charge  is  on  the  land,  and  the  land  is  devised 
over  subject  to  the  charge,  such  will  not  be  ite  effect;  yet 
the  rule  is  altogether  different  when  the  charge  is  on  the 
devisee  with  respect  to  the  land,  in  which  case  it  will 
enlarge  the  estate.  In  regard  to  the  devise  of  the  home 
farm,  in  the  tenth  item  of  the  will,  to  Samuel  and  Henry, 
I  would  remark,  that  that  being  to  take  effect  in  possession 
on  the  death  of  the  widow,  and  charged  with  the  legacy 
of  $500  to  Jacob  Lewis,  to  be  paid  at  the  age  of  twenty- 
one,  it  might  have  become  payable  during  her  lifetime, 
and  as  the  land  could  not  have  been  sold  during  her  life- 
time to  raise  the  legacy,  it  was  necessarily  in  effect  a  per- 
sonal charge  on  Samuel  and  Jlenry  and  the  devisees  over, 
and,  consequently,  enlarged  the  estate  of  the  latter  to  a  fee. 
But  we  contend,  that  if  the  remainder  of  the  sons, 
Robert  and  Samuel,  who  survived  Isaac,  the  devisee  in 
the  ninth  item,  took  but  estates  for  life,  under  the  devise 
over  to  the  remaining  sons  then  living,  in  the  part  devised 
to  him,  on  the  happening  of  the  contingency  which  gave 
effect  to  the  devise  over  in  that  item,  then  the  devise  in 
fee  to  Isaac,  in  the  first  clause  of  the  item,  was  only  im- 
paired or  abridged  pro  tnnto,  and  Isaac  the  first  taker,  and 
as  such,  took  whatever  interest  the  surviving  sons,  Robert 
and  Samuel,  were  not  entitled  to  under  the  devise  over  to 
the  remaining  sons  then  living.  And  the  same  is  the  case 
in  regard  to  the  devise  to  William,  in  the  fourth  item,  with 
the  devise  over  on  the  contingency  mentioned.  Isaac's 
estate,  whatever  it  may  have  been,  was  sold  at  sheriff's 
sale.  Because,  if  land  is  devised  to  one  person  in  fee,  and 
a  chattel  interest,  or  life  estate,  is  carved  out  of  it  for  the 
benefit  of  another  on  a  certain  contingency,  it  only  affects 
the  fee  pro  tanto,;  or,  in  other  words,  it  only  impairs  or 
derogates  from  the  fee  previously  given  to  that  extent,  and 
no  further.  And  why  should  it  ?  For  how  can  the  chattel 
interest,  or  life  estate  carved  out  of  it,  cancel  tin;  larger 
estate,  or  abrogate  the  fee?  In  support  of  this  position  he 
cited  the  same  authorities  last  cited  by  his  colleague. 


DOB  d.  HARRINGTON  v.  DILL.  409 

Fisher,  in  reply.  None  of  the  terms  employed  in  any  of 
the  items  of  this  will  import,  or  can  import,  under  the 
well-established  rules  of  interpretation  in  such  cases,  a  fee 
in  the  devises  over.  Nor  is  there  the  slightest  ground  even 
for  the  conjecture,  that  the  testator  intended  merely  to 
carve  out  of  the  estates,  first  given  by  name  to  his  several 
sons  in  fee,  life  estates  in  the  respective  premises  devised 
to  them,  for  the  benefit  of  the  devisees  over,  his  remaining 
sons  then  living,  in  case  any  of  the  first  takers  should  die 
without  issue,  and  to  diminish  or  derogate  from  the  fee 
first  given  to  that  extent,  and  no  further.  On  the  contrary, 
it  was  manifestly  the  design  of  the  testator  to  give,  in  the 
first  instance,  a  conditional  and  defeasible  fee  to  his  sons, 
which  was  to  divest  and  cease  altogether  on  the  happen- 
ing of  the  contingencies  mentioned  in  the  several  items ; 
and  this  was  the  only  natural,  or  even  plausible,  method  of 
determining  his  meaning,  as  well  as  legal  method  of  con- 
struing his  will. 

Harrington,  Ch.,  announced  the  opinion  of  the  Court. 

The  testator  died  in  1845,  leaving  to  survive  him  six  sons, 
viz., Nathaniel, William, Isaac,  Samuel,  Robert,  and  Henry; 
and  two  daughters,  Letitia  Harrington  and  Mary  Callaway; 
and  two  grandchildren,  Edmund,  the  only  child  of  his  son 
Jacob  Graham,  deceased,  and  Jacob  G.  Lewis,  only  child 
of  his  daughter,  Ann  Lewis,  deceased.  These  are  his 
heirs-at-law  and  residirary  devisees,  under  the  twelfth  item 
of  his  will.  Nathaniel  died  in  1840,  leaving  two  children, 
George  and  Ann,  the  latter  of  whom  has  since  died  with- 
out issue.  Henry  died  after  his  father  in  1845,  without 
issue.  William  also  died  in  1845,  alter  the  death  of  his 
father,  and  without  issue.  Isaac  died  in  1849,  and  Robert 
in  1850,  both  without  issue.  Samuel  in  1854,  leaving  six 
children,  live  of  whom  are  now  living.  Since  the  death  of 
William  Graham,  his  interest  and  title,  as  also  that  of 
Nathaniel,  Isaac,  Robert,  and  Samuel,  have  become  vested 
in  George  W.  Taylor,  and  the  lessors  of  the  plaintiffs 
claim   in   each  case   six-fortieth    parts   of  the  premises  in 

27 


410  COURT  OF  ERRORS  AND  APPEALS. 

question.  These  several  cases  depend  on  the  construction 
of  the  several  items  of  the  will  set  forth  in  the  case  stated, 
and  the  events  afterwards  occurring  on  which  any  legal 
contingency  that  the  will  interposes  depends.  In  regard 
to  the  fourth  item,  containing  the  devise  to  William,  there 
is  no  doubt  that  the  farm  devised  to  him,  and  upon  a  con- 
tingency to  the  remainder  of  the  testator's  sons  then  living, 
was  a  devise  in  fee,  both  in  the  first  devisee  and  in  the  re- 
maindermen, because  of  the  charge  upon  them,  in  respect 
of  the  farm,  of  a  gross  sum  to  be  paid  to  the  testator's 
grandson  Edmund  Graham.  The  general  principles  ap- 
plicable to  that,  as  well  as  the  other  devises,  are  as  follows : 
A  general  devise  without  words  of  inheritance  or  limita- 
tion carries  but  a  life  estate  to  the  devisee;  but  this  rule, 
being  one  of  technical  restriction,  is  subject  to  the  follow- 
ing exceptions.  If  there  be  no  residuary  devise,  and  the 
intention  of  the  testator  clearly  appears  to  dispose  of  his 
whole  estate  by  the  will,  a  general  devise  will  be  enlarged 
to  a  fee  to  carry  out  that  intent,  if  such  intent  can  be 
applied  to  the  devise  in  question.  Coivp.  660.  Where  the 
testator  uses  terms  which  apply  to  his  interest  in  the  land, 
and  not  merely  to  the  land  itself,  a  general  devise  of  such 
interest  will  carry  a  fee,  if  such  was  his  interest  in  the 
premises;  as  when  he  devises  his  "  estate"  at  such  a  place; 
his  "  right,"  or  his  "  part,"  of  an  estate  held  with  others, 
or  his  "share,"  referring  to  his  interest,  and  not  to  the 
corpus  of  the  property.  But  where  the  term  employed 
applies  more  properly  to  the  land  itself  than  to  his  interest 
or  estate  in  it,  a  general  devise  carries  but  a  life  estate:  as 
in  a  devise  of  "  my  house"'  or  "  farm,"  at  such  a  plaee,  or 
"a  part  of  my  house,"  "  farm,"  or  "  plantation,"  at  such  a 
plaee.  llJohns.  389;  11  East,  162;  54  Encj.  C.  L.  It.  282. 
\\\  however,  there  be  a  charge  on  the  devisee  in  respect  of 
the  land  devised  to  him,  and  not  merely  a  charge  on  the 
land  itself,  it  will  enlarge  the  general  devise  to  a  fee;  for 
otherwise  the  devise  might  prove  injurious  to  the  devisee. 
18  ./</</-.  05;   14  Err},.  II,,,.  680,  705,  710  a. 

The  devise  to  William  with  remainder  over  if  lie  should 


DOE  d.  HARRINGTON  v.  DILL.  411 

die  leaving  no  lawful  heir  of  his  body  who  should  arrive 
to  the  age  of  twenty-one,  upon  condition  of  their  paying 
two  hundred  and  fifty  dollars  to  Edmund  Graham,  falls 
under  this  last  exception^  and  makes  the  devise  over  a  fee, 
and  consequently  an  absolute  defeat  of  the  estate  first 
given  to  William,  whatever  may  have  been  the  legal 
character  of  that  estate.  The  lessors  of  the  plaintiff  there- 
fore cannot  recover  upon  any  claim  founded  on  the  fourth 
item  of  the  will,  which  the  Court  construes  as  a  devise  to 
William  in  fee  simple,  defeasible  on  his  death  without 
lawful  heir  of  his  body  who  should  attain  full  age,  with 
an  executory  devise  in  fee  to  the  remainder  of  the  testa- 
tor's sons  then  living.  In  respect  to  this  part  of  the  case, 
therefore,  it  is  the  unanimous  opinion  of  the  Court  that 
the  plaintiffs  are  not  entitled  to  recover.  But  on  the  next 
point  of  the  case  the  opinion  now  about  to  be  announced 
by  me  is  that  of  a  majority. 

The  construction  of  the  third,  ninth  and  tenth  items  of 
the  will,  is  equally  governed  by  the  principles  before 
stated ;  and  they  each  contain  a  devise  to  the  first  devisee 
in  fee  conditional  with  an  executory  devise  for  life  to  the 
devisees  over.  And  this  limitation  of  the  devises  over  to 
life  estates,  raises  the  question  principally  discussed  in  the 
argument,  namely,  what  becomes  of  the  ultimate  interest 
after  these  life  estates  were  determined.  The  plaintiffs 
contend  that  the  first  estate  though  in  fee,  hut  being  a 
defeasible  fee,  as  all  agree  it  is  under  each  of  these  de- 
vises, it  was  defeated  by  the  happening  of  the  contingen- 
cies provided  for,  namely,  the  taking  effect  of  the  devises 
over  though  but  for  life,  and  being  once  defeated  it  was 
destroyed,  and  that  the  ultimate  interest  passed  under  the 
twelfth  item  of  the  will,  as  a  residuary  devise  to  the  heirs 
generally  of  the  testator,  and  did  not  revert  to  the  heirs  of 
the  first  devisees  in  fee  conditional.  For  the  defendants, 
on  the  contrary,  it  was  contended,  that  on  the  taking  effect 
of  the  devises  over  for  life,  the  preceding  devises  in  fee 
were  not  absolutely  defeated  or  destroyed,  but  were  only 
impaired  or  abridged,  pro  tanto,  and,  on  the  determination 


412  COURT  OF  ERRORS  AND  APPEALS. 

of  the  life  estates,  the  premises  reverted  to  those  interested 
in  the  prior  devises  in  fee  simple,  and  passed  to  their  heirs- 
at-law. 

This  idea  appears  to  have  originated  with  Mr.  Preston, 
unquestionably  a  learned  text-writer  on  the  law  of  titles 
to  real  property,  who  claims  credit  for  the  discovery,  say- 
ing, "  That  there  is  a  sixth  species  of  executory  devise  of 
real  property  may  be  concluded  from  general  principles ; 
and  it  may  be  defined  to  be,  where  there  is  a  devise  of  an 
estate  of  inheritance,  or  any  other  estate,  and  on  some 
event  a  particular  estate  to  a  stranger  is  introduced  to 
take  place  in  derogation  of  the  estate  of  inheritance,  and 
to  a  particular  though  not  total  exclusion  of  the  same :" 
2  PresL  on  Estates,  140.  Powell,  another  equally  learned 
text-writer,  approves  of  the  principle  suggested  by  Mr. 
Preston,  but  denies  that  it  has  any  foundation  in  any  ad- 
judged case,  and  admits  that  it  introduces  a  new  qualifi- 
cation to  the  position  long  before  laid  down  by  Mr.  Fearne, 
a  writer  of  the  highest  celebrity,  which  is,  "  That  a  con- 
dition or  limitation  must  determine  or  avoid  the  whole 
of  the  estate  to  which  it  is  annexed,  and  not  determine  it 
in  part  only  and  leave  it  good  for  the  remainder :"  Fcarnt's 
Essay,  251, 530.  The  text  of  Powell  is  as  follows :  "  To  this 
important  rule,  namely,  that  an  estate  subject  to  an  execu- 
tory devise,  to  arise  on  a  given  event,  is,  on  the  happening 
of  that  event,  defeated  only  to  the  extent  of  the  executory 
interest,  the  only  possible  objection  that  can  be  advanced 
is  the  total  absence  of  direct  authority  for  it;  for  the  books 
do  not  furnish  a  single  example  of  its  application."  The 
decision  in  Hanbury  v.  CoekrcVL,  cited  by  Mr.  Preston, 
certainly  involves  no  such  doctrine,  since  it  simply  af- 
firms the  validity  of  the  executory  limitation  to  the  survi- 
vor for  life,  in  the  events  that  had  happened,  and  leaves 
the  question  as  to  the  destination  of  the  ulterior  interest 
quite  untouched.  It  is  merely,  therefore,  the  instance  of  a 
limitation  which  might  have  raised  the  question,  and  of 
which  the  case  of  Doc.  d.  Sheers  v.  Jejfmy,  7  T.  R.  589, 
affords  another  example.     There  also  the  decision  of  the 


DOE  <L  HARRINGTON  t.  DILL.  413 

Court  only  established  the  executory  gift  for  life,  and  did 
not  dispose  of  the  ulterior  interest.  That  the  point  does 
not  admit  of  any  doubt  upon  principle  is  readily  con- 
ceded ;  for  as  it  is  clear  that  under  a  devise  to  A.  and  his 
heirs,  and  if  he  shall  die  under  twenty-one,  or  living  It., 
to  B.  for  life,  A.  would  by  the  first  part  of  the  devise  take 
an  estate  in  fee  simple  in  the  lands  so  given,  to  the  com- 
plete disinherison  of  the  heirs ;  and  as  the  only  operation 
of  the  subsequent  executory  limitation  is  to  take  out  of 
him  in  a  certain  event  an  estate  for  the  life  of  B.,  the  fee, 
ultra  that  life  interest,  necessarily  remains  in  A." 

The  defendants7  proposition  seems  therefore  to  rest 
alone  upon  the  suggestions  of  two  or  three  respectable 
text-writers,  without  the  authority  of  any  adjudged  case 
upon  the  question ;  and  the  very  definition  of  the  new 
species  of  executory  limitation  seems  to  contain  an  as- 
sumption of  that  which  is  here  disputed.  That  definition 
is,  "  Where  there  is  a  devise  of  an  estate  of  inheritance,  or 
any  other  estate,  and  on  some  event  a  particular  estate  to 
a  stranger  is  introduced  to  take  place  in  derogation  of  the 
estate  of  inheritance  to  a  partial  though  not  a  total  exclu- 
sion of  the  same."  But  that  is  just  the  point  in  issue, 
whether  these  devises  over  are  in  derogation  of  the  estate 
of  inheritance  to  a  partial  and  not  a  total  exclusion  of  the 
same.  The  contingencies  to  which  the  estates  of  inherit- 
ance in  these  cases  were  subjected  and  which  rendered 
them  defeasible  fees,  may  with  more  propriety  be  said 
upon  their  happening  to  defeat  those  estates  in  fee,  and  to 
he  in  total  exclusion  of  the  same,  than  to  be  merely  in  de- 
rogation or  partial  exclusion  of  them.  Neither  can  it  be 
assumed  in  these  cases,  what  Mr.  Preston's  definition  re- 
quires to  be  assumed,  that  the  estates  limited  over  were 
merely  to  a  partial  and  not  to  a  total  exclusion  of  the  ori- 
ginal devises  in  fee;  for  though  the  estates  limited  over  be 
but  estates  for  life,  the  residuary  item  of  the  will  provides 
for  their  further  and  final  limitation,  and  the  disposition 
of  the  ulterior  interest  in  the  premises,  if  the  defeasible 


414  COURT  OF  ERRORS  AND  APPEALS. 

estates  of  the  first  devisees  be  defeated  by  the  happening 
of  the  contingencies  to  which  they  were  made  subject, 
and  under  which  clause  of  the  will,  in  these  events,  the 
ulterior  interest  in  the  premises,  on  the  expiration  of  the 
life  estates,  would  pass  to  the  residuary  devisees  of  the 
testator.  The  contrary  doctrine,  that  such  a  limitation  is 
only  a  partial  and  not  a  total  defeasance  of  such  a  condi- 
tional and  defeasible  fee,  is  not  only  contrary  to  the  prin- 
ciple as  stated  by  Mr.  Fearne,  who  says,  that  a  condition 
or  limitation  must  determine  or  avoid  the  whole  of  the 
estate  to  which  it  is  annexed,  and  not  determine  it  in  part 
only  and  leave  it  good  for  the  remainder,  but  is  against 
the  current  of  all  the  other  authorities  and  writers  on  the 
subject,  who  regard  such  a  limitation  to  a  fee  as  a  condi- 
tion and  a  defeasance,  which,  if  it  happens,  defeats  the 
estate  in  toto  to  which  it  is  annexed.  The  first  devisee 
takes  the  fee  only  subject  to  the  condition,  and  the  ulti- 
mate estate  or  ulterior  interest  reverts  to  the  devisor  on 
the  happening  of  the  condition  or  contingency  which  de- 
feats the  estates  given  to  him,  and  which  is  itself  then 
consumed  by  virtue  of  its  own  limitation. 

Our  construction,  therefore,  of  the  third,  ninth,  and  tenth 
items  of  the  will  is,  that  the  devise  in  each  of  them  to  the 
first  takers  is  of  an  estate  in  fee  simple,  defeasible  on  a 
contingency,  with  an  executory  devise  over  for  life,  and  on 
the  happening  of  this  contingency,  the  first  estate  in  fee 
was  defeated,  and  at  the  expiration  of  the  life  estate,  the 
fee  passed  under  the  twelfth  item  of  the  will  to  the  heirs- 
at-law  of  testator. 

Gilpin,  Ch.  ./.,  and  Wootten, ./.,  dissented  from  the  opinion 
of  the  majority  of  the  Court,  as  announced  by  the  Chancel- 
lor on  the  last  point  in  the  ease,  holding  that  the  devises 
over  of  the  life  estates  in  the  third,  ninth,  and  tenth  items 
of  the  will,  on  tin'  happening  of  the  contingencies  therein 
mentioned,  to  the  remainder  of  the  testator's  sons  then 
living,  were  in  derogation  merely  of  the  estates  in  fee  de- 


DOE  d.  HARRINGTON  v.  DILL.  415 

vised  to  the  first  or  original  devisees  in  those  items  of  the 
will  respectively  named,  and  impaired  and  abridged  them 
pro  tanto  only,  and  that  on  the  determination  of  the  life 
estates  devised  over,  the  premises  in  question  reverted  and 
passed  to  the  heirs-at-law  of  the  original  devisees  in  fee, 
and  not  to  the  heirs-at-law  generally  of  the  testator  under 
the  residuary  devise  contained  in  the  twelfth  item  of  the 
will. 


SUPERIOR   COURT. 

FALL    SESSIONS. 
18  5  7. 


Doe,  on  the  demise  of  George  M.  Davis,  v.  James  Vincent, 
Tenant  in  possession. 

The  testator,  by  his  will,  devised  all  his  lands  to  his  wife  during  widow- 
hood, with  authority  to  cut  timber,  and  use  the  land  as  she  saw  proper, 
and  to  sell  and  convey  any  part  of  them,  excepting  not  less  than  four 
hundred  acres  to  the  farm  whereon  he  lived,  which  he  willed  not  to  be 
sold  during  her  widowhood,  or  the  minority  of  their  youngest  child. 
He  also,  in  a  subsequent  item  of  his  will,  empowered  her,  by  her  last 
will  and  testament,  to  "devise  the  estate,  both  real  and  personal,  to 
their  children  or  their  proper  heirs,  as  she  might  deem  right  and  equal 
in  her  best  judgment,  which  should  be  final."  Held,  that  this  did  not 
confer  power  on  the  wife  to  devise  the  four  hundred  acres  in  the  home 
farm  to  her  executors  to  be  rented  during  the  minority  of  the  young- 
est child,  and  then  to  be  sold  by  them,  and  converted  into  money,  to  be 
invested  tor  the  benefit  of  the  children. 

The  intention  to  execute  a  delegated  power  must  appear  in  the  execution 
of  it,  either  by  a  reference  to  the  power  itself,  or  to  the  subject-matter 
of  it,  in  a  way  to  leave  no  doubt  of  the  intention  to  execute  the  power. 

This  was  an  action  of  ejectment,  brought  by  George  M. 

Davis,  the  plaintiff,  to  recover  the  one  undivided  fourth 
part  of  four  hundred  acres  of  land,  situate  in  Northwest 
Fork  Hundred.  John  Goslin,  by  his  last  will  and  testa- 
ment, dev'iM'd  the  tract  in  question  as  follows:  "I  give  and 
bequeath  to  my  beloved  wife,  ITester  Goslin,  all  mv  lands, 
during  the  term  of  her  widowhood  and   no   longer,  and    I 


DOE  d.  DAVIS  v.  VINCENT.  417 

further  give  to  her  the  right  and  privilege  of  using  the 
same  as  her  own  in  every  respect  during  said  term,  to  cut 
and  clear  all  or  any  of  the  lands  within  the  present  inclosure 
or  elsewhere,  as  she  may,  in  her  judgment,  deem  proper, 
and  to  cut  and  get  rails  and  bark  or  any  other  wood  or 
timber,  and  to  sell  the  same  to  defray  expenses  of  improve- 
ment, or  to  pay  debts  due  upon  the  estate  until  the  estate 
is  finally  settled.  And  I  further  give  to  her  the  right  and 
power,  that  at  any  time  she  may  sell  all  or  any  part  of  my 
lands  or  rights  of  lands  in  or  out  of  the  State,  that  she  may 
deem  proper,  and  make  a  good  and  sufficient  deed  of  title 
to  the  same  fully  and  effectually,  excepting  not  less  than 
four  hundred  acres  of  land  to  the  home  farm  where  I  now 
live,  which  I  will  not  to  be  sold  during  her  term,  or  the 
minority  of  our  youngest  child.  I  further  give  and  be- 
queath to  my  beloved  wife,  Hester  Goslin,  all  my  personal 
estate  of  every  kind,  after  the  payment  of  all  my  just  debts 
and  burial  expenses,  during  the  term  of  her  widowhood, 
and  she  may  give  off  to  any  of  the  children  at  any  time  in 
case  of  need  or  marriage,  any  part  of  the  estate  she  may 
deem  proper,  either  real  or  personal,  and  I  devise  to  her 
the  right  that  she  may,  in  her  last  will  and  testament,  de- 
vise the  estate,  both  real  and  personal,  to  our  children  or 
their  proper  heirs,  as  she  may  deem  right  and  equal  in  her 
best  judgment,  which  shall  be  final."  The  testator,  John 
Goslin,  died,  leaving  to  survive  him  his  widow,  Hester 
Goslin,  and  tour  children,  the  eldest  of  whom,  Ann  Eliza 
Goslin,  afterwards  intermarried  with  the  plaintiff.  Hester 
Goslin,  the  widow  and  devisee,  continued  in  possession  of 
the  land,  up  to  her  death,  in  November,  1852,  having  made 
her  last  will  and  testament,  wherein  she  devised  among 
other  things  as  follows:  "  Item  fourth.  It  is  my  will  and 
desire  that  my  real  estate,  comprising  about  lour  hundred 
acres,  shall,  after  my  decease,  be  rented  out  by  my  execu- 
tors hereinafter  named,  to  a  good  tenant  or  tenants,  until 
my  youngest  daughter,  Hester  Lavinia,  shall  arrive  at  the 
age  of  twenty-one  years,  and  the  net  rents  and  profits  he 
divided  annually  and  equally  between   my   tour   children, 


418  SUPERIOR  COURT. 

Ann  Eliza,  Mary  Catharine,  Sarah  Emma,  and  Hester 
Lavinia,  and  paid  over  by  my  executors  to  them  respec- 
tively. Item  fifth.  My  will  and  desire  is,  that  as  soon  as 
my  dear  daughter,  Hester  Lavinia,  shall  arrive  at  the  age 
of  twenty-one  years,  my  executors  hereinafter  named  shall 
advertise  and  sell  at  public  sale  all  my  real  estate,  on  a  cre- 
dit of  one,  two,  three,  and  four  years,  in  equal  annual  pay- 
ments, with  interest  on  the  whole  unpaid  sum  annually, 
secured  by  bond  and  ample  security,  and  payable  as  fol- 
lows: the  first  bond  and  interest  to  my  daughter,  Hester 
Lavinia ;  the  second  bond  and  interest  at  two  years  to  my 
daughter,  Sarah  Emma;  the  third  bond  and  interest  at 
three  years  to  my  daughter,  Mary  Catharine ;  and  the  last 
and  fourth  bond  and  interest  at  four  years  to  my  executor 
hereinafter  named,  as  trustee  for  my  daughter,  Ann  Eliza, 
the  interest  of  which  to  be  paid  over  to  her,  independent 
of  her  husband,  annually  by  the  said  trustee,  and  should  the 
said  bond  mature,  and  be  paid  over  to  the  said  trustee  in 
the  lifetime  of  my  said  daughter  Ann  Eliza,  then  the  said 
trustee  shall,  without  delay,  invest  or  loan  out  the  same,  in 
his  name  as  trustee,  on  interest,  and  the  sums  accruing 
thereon  to  be  paid  over  annually  to  her,  independent  of 
her  husband,  by  said  trustee ;  but  at  the  death  of  my  said 
daughter  Ann  Eliza,  the  trusteeship  shall  cease,  and  the 
said  bond,  rights,  or  effects  by  this  will  arising  out  of  the 
sale  of  1113*  personal  or  real  estate,  whether  in  the  hands  of 
my  said  executors  i«*  in  that  of  the  trustee,  shall  pass  to 
and  belong  to  my  said  daughters  who  shall  survive  her, 
them  and  their  heirs,  in  equal  proportions,"  &c.  The  exe- 
cutors named  in  the  will  took  upon  themselves  the  execu- 
tion of  it,  and  executed  a  lease  of  the  premises  to  the 
defendant,  the  tenant  in  possession.  On  the  23d  of  'Inly, 
1853,  George  M.  Davis  and  Ann  Eliza  his  wife,  the  plain- 
tiffs, by  deed  of  bargain  and  sale,  sold  and  conveyed  all 
their  undivided  estate,  right,  title,  and  interest  in  the  pre- 
mises, to  John  Redden,  who  shortly  afterward,  by  his  deed 
of  bargain  and  sale,  reconvened  the  same  to  tin-  plaintiff, 
who  afterwards  made  a  formal  demand  of  the  defendant  to 


DOE  d.  DAVIS  v.  VINCENT.  419 

be  let  into  possession  of  the  premises,  and  the  defendant 
refusing  to  admit  him,  this  action  was  instituted,  A  receipt 
from  Davis  and  his  wife  to  one  of  the  executors,  for  her 
share  of  the  rent  of  the  premises  for  the  year  1853,  was 
produced,  proved,  and  put  in  evidence  on  the  trial. 

W.  Saulsbury,  for  the  plaintiff:  Under  the  will  of  her 
husband,  John  Goslin,  Hester  Goslin,  his  widow,  had  no 
right  to  dispose  of  the  land  as  she  has  attempted  to  do  in 
this  instance,  and  has  manifestly  exceeded  the  power  and 
authority  conferred  upon  her  by  it.  By  his  will  she  had 
but  an  estate  in  the  premises  during  her  widowhood,  with- 
out impeachment  of  waste,  with  authority  to  herself  alone, 
during  her  widowhood,  to  sell  and  convey,  by  good  and 
sufficient  deed,  any  portion  of  his  real  estate  she  might 
deem  proper,  excepting  not  less  than  four  hundred  acres 
of  land  to  the  home  farm  belonging,  and  to  give  off  during 
that  period  any  part  of  it  she  might  think  proper  in  case 
of  need  or  marriage,  to  any  of  the  children,  and  with  the 
right  and  power  also  to  devise  the  same,  by  her  last  will 
and  testament,  to  their  children  and  their  heirs,  as  she 
might  deem  right  and  equal  according  to  her  best  judg- 
ment, which  was  to  be  final  and  conclusive  as  a  disposition 
of  the  property.  Under  the  will  of  her  husband,  Mrs. 
Goslin  had  no  authority  to  sell  these  lands  after  the  deter- 
mination of  her  widowhood,  or  to  direct  this  real  estate 
after  her  death  to  be  either  rented  or  sold  and  converted 
into  personal  property,  by  her  executors,  or  any  one  else. 
It  is  true  that  she  had  the  power  conferred  upon  her  by 
his  will,  to  sell  any  of  his  land  during  her  widowhood,  ex- 
cepting these  four  hundred  acres,  and  with  a  special  and 
limited  authority  (luring  that  time  to  give  any  part,  even 
of  this  tract,  to  any  of  the  childremin  ease  of  need  or  mar- 
riage, and  also  by  her  will  at  her  death  to  devise  it  to 
their  children  and  their  heirs,  as  she  might  deem  right 
and  equal,  that  is  to  say,  in  such  proportions  as  she  might 
consider  just  and  proper.  But  there  was  nothing  in  the 
will    to  warrant   such   a  disposition  of  it   by  her  after  her 


420  SUPERIOR  COURT. 


death,  as  she  has  attempted  by  the  devise  in  question — 
nothing  to  warrant  her  in  directing  it  to  be  rented  out  un- 
til the  youngest  child  attained  the  age  of  twenty-one  years, 
much  less  after  that  to  warrant  her  executors  in  selling 
this  real  estate,  which  he  was  careful  to  preclude  even  her 
from  selling  in  her  lifetime,  and  converting  it  into  money, 
to  be  secured  and  invested  and  unequally  paid  and  distri- 
buted in  the  manner  directed  in  her  last  will  and  testa- 
ment. Not  having  the  power  herself  in  her  lifetime  to 
sell  this  land,  and  not  having  the  power  by  the  will  of  her 
husband  to  direct,  by  her  own  will  after  her  death,  that  it 
should  either  be  sold  or  rented  out  as  she  has  indicated,  it 
is  clear  that  she  could  not  confer  that  power  upon  her  ex- 
ecutors, or  any  other  person  ;  for  even  if  the  power  to  sell 
this  tract  had  been  conferred  on  her,  she  could  not  have 
delegated  it  to  another,  because  a  delegated  power  cannot 
be  delegated. 

The  question  then  arises,  has  Mrs.  Goslin  by  her  last  will 
and  testament  duly  executed  the  powers  delegated  to  her 
by  the  will  of  her  husband  ?  On  the  contrary,  is  it  not 
apparent  from  a  comparison  of  the  two  instruments  that 
she  has  clearly  transcended  in  these  respects  the  authority 
and  powers  conferred  upon  her  for  any  purpose  either  ex- 
pressed or  implied  in  it?  If  so,  the  devise  in  her  will  to 
her  executors  with  directions  to  rent  these  four  hundred 
acres  until  her  youngest  daughter,  Hester  Lavinia,  should 
arrive  at  the  age  of  twenty-one  years,  and  then  to  sell  the 
same  at  public  sale  to  the  highest  purchaser,  and  to  convert 
the  whole  of  it  into  personalty,  is  clearly  inoperative  and 
void,  and  the  lease  of  the  executors  under  which  the  de- 
fendant claims  to  retain  the  possession  of  the  premises  is  a 
nullity. 

There  was  another  objection  to  her  will  in  this  respect, 
to  which  he  would  advert  in  his  opening.  Ft  is  a  maxim 
of  law  that  if  a  party  possessing  a  power  does  not  attempt 
or  indicate  a  purpose  to  pursue  it,  he  must  he  held  to  re- 
pudiate and  renounce  the  power.  Now  in  this  case,  it 
would  he  observed  in  reading  over  the  will  of  Mrs.  (ioslin, 


DOE  d.  DAVIS  v.  VINCENT.  421 

that  she  makes  no  allusion  whatever  to  the  will  of  her  hus- 
band, or  to  the  powers  conferred  upon  her  by  it,  but  every- 
where speaks  of  these  four  hundred  acres  as  "  my  land," 
without  any  reference  to  the  source  from  whence  she  de- 
rived her  limited  title  to  them,  or  to  her  specially  delegated 
power  of  devising  them,  but  proceeds  to  dispose  of  them 
precisely  as  if  they  were  her  own  absolute  property ;  thus 
manifesting  an  intention  on  the  face  of  her  will  to  pay  no 
attention  to  the  power  delegated  to  her  for  this  purpose, 
but  to  devise  them  as  her  own  altogether  independently 
of  it. 

Robinson,  for  the  defendant :  Under  the  will  of  John 
Goslin,  Hester  Goslin,  his  widow,  who  did  not  marry 
again,  took  an  estate  for  life  in  the  four  hundred  acres  of 
land  in  question,  which  was  the  only  real  estate  of  which 
he  died  seized,  with  a  power  to  devise  the  same  to  be 
rented  until  the  youngest  child  arrived  at  age,  and  after 
that  to  be  sold,  and  to  appoint  the  proceeds  of  the  sale 
among  the  four  children,  as  she  might  deem  right  and  equal 
according  to  her  own  judgment  and  discretion  ;  and  if 
3uch  was  the  case,  then  her  will  was  a  good  and  valid  ex- 
ecution of  the  powers  conferred  upon  her  by  him.  To  as- 
certain the  meaning  of  the  testator,  the  whole  will  must 
be  taken  and  construed  together.  Adopting  this  rule,  Ave 
find  the  general  intent  of  the  testator  to  be,  in  the  first 
place,  to  invest  his  wife  after  his  death  and  during  her 
widowhood  with  a  large  discretion  over  his  real  and  per- 
sonal estate,  even  to  the  power  of  selling,  during  her 
widowhood,  any  or  all  of  his  real  estate,  "  excepting  not 
less  than  four  hundred  acres  of  land  to  the  home  farm, 
where  he  then  lived,  which  he  directed  should  not  he  sold 
during  her  term,  or  the  minority  of  their  youngest  child." 
These  arc  the  words  of  the  testator,  excepting  the  particu- 
lar tract  in  question  from  the  general  operation  of  the  de- 
vise and  the  power  conferred  for  a  time  merely,  and  which 
he  directed  "not  to  he  sold"  (luring  the  widowhood  of  his 
wife  or  the  minority  of  their  youngest   child.      And   after 


422  SUPERIOR  COURT. 

prescribing  this  limitation  of  time  within  which  this  par- 
ticular tract  should  not  he  sold,  he  proceeds,  in  the  second 
item  of  the  will,  to  give  Mrs.  Goslin  full  power  and  autho- 
rity, during  her  widowhood,  to  bestow  any  part  of  his  es- 
tate, either  real  or  personal,  in  case  of  need  or  marriage, 
on  any  of  their  children,  and  at  her  death,  to  devise  the 
estate,  both  real  and  personal,  by  her  last  will  and  testa- 
ment, to  their  children  and  their  heirs,  as  she  might  deem 
proper.  On  this  latter  point  the  words  of  the  will  are, 
lw  And  I  devise  to  her  the  right,  that  she  may  in  her  last 
will  and  testament  devise  the  estate,  both  real  and  personal, 
to  our  children  or  their  proper  heirs,  as  she  may  deem 
right  and  equal  in  her  best  judgment,  which  shall  be  final." 
Well  now,  taking  all  these  provisions  together,  and  par- 
ticularly with  the  comprehensive  power  and  general  dis- 
cretion delegated  in  the  last  clause  read,  do  they  not  indi- 
cate an  evident  intention  on  his  part  to  authorize  and  em- 
power her,  by  her  last  will  after  her  death,  and  when  she 
had  ceased  to  be  their  guardian  and  protector,  to  dispose 
of  these  premises  in  any  manner  which  she  might  deem 
best  for  the  future  provision  and  welfare  of  their  children, 
all  of  whom  were  daughters?  It  is  manifest  that  Mrs. 
Goslin  so  understood  the  will  of  her  husband,  and  it  was 
for  this  reason,  construing  the  provisions  of  the  will  alto- 
gether, so  as  to  preserve  the  particular  as  well  as  the  gene- 
ral intent  of  it,  that  she  directed  in  her  own  will  that  these 
four  hundred  acres  should  not  be  sold,  but  should  be  rented 
out  during  the  minority  of  their  youngest  child.  But  she 
conceived  that  after  that  the  limitation  on  the  sale  of  it, 
prescribed  by  the  will  of  her  husband,  would  expire,  and 
that  she  might  then  by  her  last  will  and  testament  direct 
it  to  be  sold,  if  she  deemed  it  best  tor  the  interest  of  their 
children,  without  violating  the  intention  of  her  husband, 
or  exceeding  the  ample  power  and  discretion  vested  in  her 
for  that  purpose. 

Powers  are  but  modifications  of  estates  in  land,  and  are 
governed  by  the  general  intent  of  the  testator.  I)<»kj.  f>7:>>: 
:;  IUrr.  1440  ;•  cC/).  2M;  1  /V.   Wm*.  lilt;  3  East,  441;   2 


DOE  d.  DAVIS  v.  VINCENT.  423 


Burr.  1146;  10  East,  43G;  1  Sug.  on  Powers,  357;  1  Taunt. 
289;  Adams  on  Ejectm.  83.  And  no  particular  form  of 
words  is  necessary  to  create  a  power  of  sale,  for  it  is  suf- 
ficient if  there  be  an  apt  instrument,  a  proper  object  of 
the  power,  and  the  intention  is  manifest.  1  Sag.  on  Powers, 
117, 184,  415 ;  3  Ves.  Jr.  513 ;  4  Kent's  Com.  319.  A  power 
to  appoint  the  land  is  well  executed  by  a  devise  of  the  land 
to  be  sold,  and  an  appointment  of  the  proceeds  of  the  sale. 
6  Ves.  797;  2  Vern.  8(3;  Eq.  Cases,  68;  5  Ves.  445;  1  Sug. 
on  Powers,  405.  And  a  devise  of  the  rents  and  profits  or 
the  proceeds  of  the  sale  of  land,  is  a  devise  of  the  land 
itself.  22  Eng.  C.  L.  R.  19;  4  Kent's  Com.  536;  2  Harr. 
Pep.  19.  If,  then,  the  powers  delegated  to  Mrs.  Goslin  by 
the  will  of  her  husband  were  not  transcended,  but  were 
properly  executed  by  her  in  her  own  will,  within  the  mean- 
ing and  intention  of  her  husband,  the  devise  to  her  execu- 
tors to  rent  the  land  during  the  minority  of  her  youngest 
daughter  and  afterwards  to  sell  the  same  is  good,  and  the 
legal  estate  is  vested  in  them  as  trustees  for  these  purposes, 
and  it  was  not  competent  for  the  plaintiff"  and  his  wife  by 
their  deed  of  bargain  and  sale  to  Redden  to  divest  that 
estate,  but  the  same  is  still  in  the  trustees,  and  the  lease  is 
binding  on  all  the  ccstuis  que  trust,  and  the  possession  of  the 
defendant  is  entirely  lawful,  and  must  prevail  in  the  present 
action. 

But  there  is  another  matter  to  which  the  attention  of 
the  Court  should  be  directed,  and  that  was  the  fact  proved, 
that  Davis  and  his  wife  had  accepted  and  received,  in  1853, 
their  share  of  the  rent  of  these  premises  accruing  on  the 
lease  from  the  executors  to  the  defendant,  which  was  an 
acknowledgment  on  their  part  of  the  rightful  and  lawful 
tenancy  of  the  defendant,  which  would  entitle  him  to  due 
and  written  notice  before  it  could  be  determined,  and  with- 
out which  the  plaintiff  was  not  entitled  to  recover. 

Mr.  Saulsbary  replied.  And  to  afford  the  Court  an  op- 
portunity to  consider  of  the  question,  a  verdict  was  taken 
l'or  the  plaintiff,  by  the  consent  of  counsel,  subject  to  the 


424  SUPERIOR  COURT. 

opinion  of  the  Court  as  to  his  right  to  recover,  with  leave 
to  the  defendant  to  move  to  set  it  aside,  if  the  opinion 
should  be  in  his  favor. 

Houston,  J.,  now  announced  the  opinion  of  the  Court. 

From  the  consideration  which  we  have  been  enabled  to 
give  to  the  questions  presented  in  this  case,  it  is  the  opinion 
of  the  Court  that  the  plaintiff  is  entitled  to  recover,  and 
that  the  verdict  should  not  be  disturbed  which  has  been 
returned  in  his  favor. 

The  receipt  from  Davis  and  his  wife  to  Kinder,  one  of 
the  executors  of  Mrs.  Goslin,  for  their  share  of  the  rent  of 
the  premises  in  1853,  paid  over  by  the  defendant  to  the 
executors  under  whom  he  leased  the  land,  in  the  judgment 
of  the  Court  is  no  bar  to  this  action.  For  if  Mrs.  Goslin 
had  no  authority,  under  the  will  of  her  husband,  John  Gos- 
lin (which  we  think  she  had  no't),  to  devise  these  lands  by 
her  last  will  and  testament  to  her  executors  to  be  rented 
by  them  after  her  death,  during  the  minority  of  the  young- 
est child,  and  on  her  arrival  at  age  to  be  sold  by  them,  as 
directed  in  her  will,  then  no  receipt  by  the  plaintiff,  or 
plaintiff  and  wife,  to  the  executors,  on  account  of  rent  paid 
or  delivered  by  the  defendant  to  them  as  his  landlords,  can 
cure  the  defect  or  remedy  the  deficiency  in  her  power  for 
that  purpose,  or  defeat  the  legal  title  and  right  of  the  plain- 
tiffs to  recover  in  this  suit.  If  Mrs.  Goslin  had  not  the 
power  under  the  will  of  her  husband  to  make  such  a  de- 
vise of  the  premises  in  question,  no  admissions  in  pais  of 
the  plaintiff  could  give  her  that  authority,  or  enlarge  the 
operation  of  the  power  conferred  upon  her,  so  as  to  bar 
him  of  his  right  to  recover  under  the  evidence  adduced  in 
this  case;  for  that  must  depend  upon  the  will  of  her  hus- 
band when  properly  considered  and  construed,  and  not  on 
the  subsequent  acts  and  acknowledgments  of  the  parties 
interested,  such  as  were  put  in  evidence  on  the  trial. 

We  do  not  think,  if  Mrs.  Goslin  had  possessed  the  power 
under  the  will  of  her  husband  to  sell  these  lands  during 
her  widowhood  (and  which  she  had  not),  that  she  could 


DOE  d.  DAVIS  v.  VINCENT.  425 

have  delegated  that  power  to  her  executors  after  her  death, 
even  if  she  could  have  delegated  the  power  to  another 
during  widowhood,  the  general  maxim  on  this  subject 
being  delegatus  non  potest  delegare.  And  although  her  hus- 
band expressly  desires  i-n  his  will  that  these  lands  shall  not 
be  sold  during  the  widowhood  of  his  wife,  or  the  minority 
of  their  youngest  child,  aud  notwithstanding  he  gives  in  the 
succeeding  item  of  his  will,  the  right  to  his  wife  by  her 
last  will  and  testament  to  devise  the  estate,  real  and  per- 
sonal, to  their  children  or  their  lawful  heirs,  as  she  might 
deem  equal  and  right  in  her  best  judgment,  we  do  not  con- 
sider that  any  power  was  delegated,  by  implication  or  other- 
wise, to  Mrs.  Goslin  to  devise  these  lands  to  her  executors 
to  be  rented  by  them  after  her  death  and  during  the  mi- 
nority of  their  3-oungest  daughter,  and  on  her  arrival  at 
age  to  be  sold  by  them,  and  the  proceeds  of  the  sale  to  be 
secured  and  paid  over  by  them  to  their  four  daughters,  as 
directed  in  the  fifth  item  of  her  will.  In  the  disposition 
which  she  has  thus  attempted  to  make  of  the  laud,  we  think 
she  has  transcended  the  limits  of  the  power  conferred  upon 
her  by  the  will  of  her  husband,  and  this  we  regard  as  the 
main  objection  which  has  been  taken  to  the  appointment 
or  execution  of  the  power  delegated  to  her.  The  will  of 
her  husband  authorizes  her  to  devise  "  the  estate,  both  real 
and  personal,  to  their  children  or  their  lawful  heirs,  as  she 
might  deem  equal  and  right  in  her  best  judgment."  But 
this  she  has  not  done ;  for  instead  of  devising  the  real 
estate  to  their  children  or  their  lawful  heirs  as  real  estate, 
she  has  devised  it  to  other  persons,  first  to  be  rented  and 
afterwards  to  be  sold  by  them  and  converted  into  person- 
alty, and  to  be  secured  for  the  benefit  of  the  (laughters  in 
such  manner  as  others  may  deem  sufficient,  to  be  paid  at 
unequal  times,  and  in  reference  to  the  portion  to  be  secured 
for  the  wife  of  the  plaintiff,  not  to  go  to  her  or  her  lawful 
heirs,  but  to  another,  to  be  held  in  trust  for  her,  the  interest 
to  be  paid  to  her  during  life,  independent  of  her  husband, 
and  after  her  death  the  principal  to  be  paid  over  to  the 
heirs  of  her  body,  &c.     This,  in  the  opinion  of  the  Court, 

28 


426  SUPERIOR  COURT. 

she  had  not  the  power  to  do  under  the  will  of  her  husband; 
for  the  right  to  devise  real  estate  to  children  as  she  might 
deem  "  equal  and  right,"  cannot  by  any  principle  of  legiti- 
mate construction  we  know  of,  be  held  to  confer  the  power 
to  devise  it  to  entire  strangers,  and  to  direct  it  to  be  con- 
verted into  personalty  by  a  sale  to  strangers,  although  the 
proceeds  are  to  be  secured  to  the  children  in  such  manner 
as  she  deemed  proper.  The  limitation  referred  to  by  the 
counsel  for  the  defendant  in  the  first  item  of  her  husband's 
will,  which  prescribes  that  the  four  hundred  acres  con- 
tained in  his  home  farm  should  not  be  sold  during  the 
widowhood  of  his  wife,  or  the  minority  of  his  youngest 
child,  has  a  broader  significance,  we  think,  than  he  has 
given  to  it,  and  when  properly  considered  will  not  sustain 
the  inference  which  he  has  deduced  from  it,  particularly 
when  it  is  known  that  this  was  all  the  real  estate  he  owned 
at  the  time  of  making  his  will.  For  it  not  only  precluded 
the  sale  of  it  by  his  wife  during  that  time,  but  also  by  any 
other  power  or  authority  whatever,  and  was  more  pro- 
bably designed  to  prevent  the  sale  and  conversion  of  it  into 
money  by  proceedings  for  partition  or  otherwise,  and  to 
retain  it  as  real  estate  for  his  children,  at  all  events,  until 
the  youngest  should  attain  the  age  of  twenty-one  years. 
The  intention  to  confer  such  a  power  as  is  claimed  for  the 
devisee  in  this  instance  ought  to  be  clearly  and  unequivo- 
cal ly  indicated,  or  expressed  in  the  will,  and  should  not  de- 
pend on  an  argumentative  deduction,  or  be  left  to  infer- 
ence or  presumption  merely. 

There  was  also  another  exception  taken  to  the  will  of 
Mrs.  Goslin,  in  this  connection,  which  we  consider  it  pro- 
per to  notice  before  we  conclude  our  opinion.  We  allude 
to  the  objection  that  it  contains  no  reference  whatever  in 
terms  to  the  will  of  her  husband,  or  to  the  right  or  power 
conferred  upon  her  by  it,  or  to  the  subject-matter  of  the 
power,  which  clearly  and  unequivocally  indicates,  without 
any  doubt  or  uncertainty,  an  intention  on  her  part  to  exe- 
cute the  power  delegated,  or  to  act  under  the  will  of  her 
husband,  in  disposing  as  she  has  of  the  premises  in  contro- 


CANNON'S  ADMR.  v.  EDWARDS.  427 

versy.  She  nowhere  refers  to  his  will,  or  to  the  authority 
derived  from  it,  in  her  own  will,  from  the  commencement 
to  the  close  of  it,  or  even  to  her  husband  himself,  except 
in  the  directions  which  she  gives  for  the  erection  of  tomb- 
stones over  his  and  her  own  graves,  and  for  the  interment 
of  her  own  by  the  side  of  his  remains.  On  the  contrary, 
she  invariably  speaks  in  her  will  of  the  land  as  her  own, 
and  devises  and  disposes  of  it  in  the  same  manner  and  in 
the  same  language  as  if  it  belonged  to  her  in  her  own  right, 
and  she  could  do  with  it  as  she  pleased.  We  therefore 
cannot  say  that  we  are  satisfied,  in  addition  to  the  other 
objections  raised  to  the  execution  of  the  power  delegated, 
that  it  was  the  intention  of  Mrs.  Goslin  to  execute  it  in 
the  manner  which  her  husband's  will  required,  and  which 
intention  must  always  appear  in  the  execution  of  such  a 
power,  either  by  a  reference  to  the  power  itself  or  by  some 
relation  to  the  subject-matter  of  it,  in  a  way  which  can  leave 
no  doubt  of  the  intention  to  execute  the  power. 

The  dispositions  in  the  will  of  Mrs.  Goslin  not  being, 
therefore,  in  conformity  with  the  power  conferred  upon 
her  by  the  will  of  her  husband,  the  devise  in  question  is 
inoperative  and  void,  and  the  power  having  failed  for  the 
want  of  the  proper  execution  of  it,  the  premises  in  dispute 
became  intestate  property  of  the  testator  and  descended  to 
his  heirs-at-law  upon  her  death.  The  plaintiff  is  conse- 
quently entitled  to  recover,  and  the  verdict  must  stand. 


Wesley  Smith,  Administrator  of  John  Cannon,  deceased, 
defendant  below,  Appellant,  v.  James  Edwards,  plaintiff 
below,  Respondent. 

A  balunce  due  upon  a  note  to  an  administrator,  as  administrator,  given 
for  goods  .sold  by  him  at  public  sale  as  the  property  of  hi.-  intestate, 


428  SUPERIOR  COURT. 

cannot  be  set  off  in  an  action,  at  the  suit  of  the  maker  of  the  note, 
against  the  administrator,  for  a  debt  due  from  his  intestate  to  the  maker 
of  it. 

An  appeal  from  a  justice  of  the  peace.  Pronarr  in  as- 
sumpsii  on  an  account.  The  action  was  at  the  suit  of 
Edwards,  the  plaintiff  below,  against  Smith,  administrator 
of  John  Cannon,  deceased,  the  defendant  below,  for  one 
hundred  dollars,  due  from  John  Cannon,  deceased,  to 
Edwards,  the  plaintiff  below.  On  the  trial  here,  Smith, 
the  defendant  below  and  the  administrator  of  Cannon, 
pleaded  a  set-off  to  the  demand  of  the  plaintiff  below,  the 
ground  of  which  was,  that  as  the  administrator  of  Cannon, 
after  his  death,  he  advertised  and  sold  his  goods  and  chat- 
tels at  public  sale,  at  which  the  plaintiff  below  became  the 
purchaser  of  a  horse,  at  the  bid  of  $530,  for  which  he  gave 
his  note  to  Smith  as  the  administrator  of  Cannon;  but 
failing  to  pay  the  note  when  it  was  due,  the  horse  was 
redelivered  to  Smith,  who  afterwards  advertised  him  anew, 
and  sold  him  again  at  public  sale  for  $350,  and  now  de- 
manded the  difference  between  the  amount  of  the  note 
and  the  price  obtained  at  the  last  sale,  £180,  as  a  set-off  to 
the  claim  of  the  plaintiff. 

A  witness  being  called  to  prove  the  set-off,  the  counsel 
for  the  plaintiff  below  objected  to  the  admissibility  of  the 
evidence,  because,  if  due  at  all,  it  was  not  due  to  Smith, 
the  defendant  below,  as  the  administrator  of  Cannon,  but 
in  his  own  right,  and  it  could  not,  therefore,  be  pleaded  or 
proved  as  a  set-off  in  this  action,  which  was  for  a  debt  due 
the  plaintiff  from  Cannon,  the  intestate,  in  his  lifetime,  and 
was  now  of  course  due  from  Smith,  his  administrator, 
solely  in  his  representative  capacity.  Such  being  the  case, 
they  could  not  be  set-off  against  each  other  for  the  want  of 
mutuality.  Her.  Code,  380;  1  Set.  \.  P.  149;  2  Archh.  N.  P. 
21!*;    Barb,  on  Set-off,  54;   2  OwA,  341;  8  Wend.  530. 

And  of  this  opinion  was  the  Court. 

The  testimony  was  excluded. 

E.  JJ.  Cu/lcn,  for  respondent. 
W.  Saulsbury,  for  appellant. 


HICKMAN  &  CO.  v.  BRANSON.  429 


George  W.  Hickman  &  Co.,  Assignees  of  William  E. 
Torbert  &  Co.,  v.  Samuel  Branson. 

A  joint  judgment  entered  against  the  individual  members  of  a  late  firm, 
on  a  bond  and  warrant  of  attorney  executed  for  them  by  one  of  the 
members,  but  without  their  proper  authority,  is  neither  binding  on 
them,  nor  on  the  member  executing  the  bond  and  warrant  of  attorney. 

This  was  a  rule,  obtained  by  George  W.  Hickman  &  Co., 
assignees  of  William  E.  Torbert  &  Co.,  to  show  cause 
wherefore  a  judgment  entered  by  confession,  and  an  exe- 
cution issued  thereon,  at  the  suit  of  Samuel  Branson  against 
the  late  firm  of  William  E.  Torbert  &  Co.,  should  not  be 
set  aside.  It  appeared  by  the  affidavit  and  evidence  for  the 
plaintiffs  in  the  rule,  that  the  bond  and  warrant  of  attorney 
on  which  the  judgment  was  entered,  was  executed  in  the 
name  of  the  late  firm  of  William  E.  Torbert  and  William 
L.  Torbert  by  William,  E.  Torbert,  but  that  he  had  no  autho- 
rity to  sign  and  execute  the  same  so  as  to  bind. the  firm,  or 
William  L.  Torbert,  the  other  member  of  it,  as  he  had  no 
authority  from  the  latter  to  sign  and  execute  the  bond,  or 
to  confess  the  judgment  against  him  individually,  or  against 
the  late  firm  of  William  E.  Torbert  &  Co.,  which  had  been 
previously  dissolved  on  the  10th  of  March,  1857,  and  Wil- 
liam E.  Torbert,  as  the  duly  constituted  successor  of  the 
firm,  having  made  a  bona  jidc  assignment  of  the  debts  due 
it,  on  the  20th  of  the  same  month,  to  the  firm  of  George 
W.  Hickman  &  Co.,  the  latter  engaging  to  collect  the  debts 
due  to  and  pay  the  debts  due  from  the  late  firm  of  William 
E.  Torbert  A:  Co.,  of  which  they  were  also  creditors  at  the 
time  of  the  assignment  made  to  them.  For  the  defendant 
in  the  rule,  it  was  proved  that  the  assignment  in  question 
was  made  in  consideration  o(  the  relinquishment  of  the 
claims  of  such  of  the  creditors  of  the  late  firm  of  William 
1'].  Torbert  &  Co.  as  were  then  present,  but  that  the 
defendant,  who  was  a  creditor  of  the  (inn,  was  not  present 
at  the   meeting,  and  that  William  L.  Torbert   had   stated, 


430  SUPERIOR  COURT. 

since  the  dissolution  of  the  firm,  that  William  E.  Torhert 
had  authority  from  him  to  sign  the  bond  and  warrant  of 
attorney  to  the  defendant,  but  without  saying  what  was  the 
nature  of  his  authority.  Also,  that  certain  creditors  of  the 
firm  were  preferred,  and  had  been  paid  in  full,  in  conside- 
ration of  which  they  had  assented  to  the  assignment,  and 
others  under  it  were  to  be  paid  unequal  dividends,  some 
amounting  as  high  as  to  ninety  per  cent,  of  their  demands. 

For  the  plaintiffs,  it  was  argued  that  an  individual  mem- 
ber of  a  firm  cannot  bind  it  by  deed,  unless  authorized  to 
do  so  by  deed,  and  as  the  successor  of  the  firm  of  William 
E.  Torbert  &  Co.,  William  E.  Torbert  had  full  power  and 
authority  to  make  the  assignment  in  question  to  the  firm 
of  George  W.  Hickman  &  Co.  Story  on  Partn.,  see.  122;  5 
Hill,  107. 

For  the  defendant,  it  was  denied  that  he  had  authority 
to  make  the  assignment,  but  the  same,  it  was  contended, 
was  fraudulent  and  void  as  to  the  defendant,  who  had  not 
assented  to  it,  because  it  preferred  creditors,  and  debts  not 
then  due,  as  the  claim  of  Hickman  &  Co.,  to  the  defendant's 
debt,  which  was  then  due,  and  because  it  unjustly  discri- 
minated between  the  claims  of  creditors,  and  made  an  un- 
fair  and  unequal  distribution  among  them. 

By  the  Court:  It  is  not  necessary  to  notice  or  pass  upon 
the  objections  which  have  been  raised  against  the  validity 
of  the  assignment  to  Hickman  k  Co.,  for  it  is  proved  that 
they  are  bona  fide  creditors  of  the  late  firm  of  William  E. 
Torbert  &  Co.,  and  as  such,  they  have  a  right  to  ask  for 
the  rule  laid,  which  is  simply  to  show  canst.'  wherefore  this 
judgment  and  execution  should  not  be  set  aside,  on  the 
ground  that  the  judgment  has  been  entered  without  due 
warrant  or  authority.  The  bond  and  warrant  of  attorney 
appear  to  have  been  executed /or  William  K.  and  William 
L.  Torbert,  the  members  of  the  late  firm  referred  to,  by 
AVilliam  K.  Torbert,  one  of  those  members,  and  as  no  pro- 
per authority  has  been  produced  or  proved,  to  enable  hint 
to  hind  the  firm,  or   William  L.  Torhert,  the  other  mem- 


SYDAM  &  REED  v.  CANNON.  431 

ber  of  it,  by  such  an  act  or  instrument,  it  cannot  be  treated 
as  the  bond  and  warrant  of  the  firm,  or  of  W.  L.  Torbert, 
the  other  member  of  it,  and  of  course,  it  cannot  bind  them. 
Neither  can  it  be  properly  considered,  owing  to  the  mode 
in  which  it  has  been  entered,  as  the  sole  judgment  of  Wil- 
liam E.  Torbert,  by  whom  the  bond  and  warrant  were 
executed  for  himself  and  his  late  copartner,  because  the 
judgment  entered  is  a  joint  judgment  against  the  two,  and 
not  against  each  of  them  severally,  either  in  form  or  effect, 
and  it  could  not  have  been  entered  otherwise,  perhaps, 
pursuant  to  the  tenor  of  the  warrant.  The  judgment  and 
execution  must,  therefore,  be  entirely  set  aside,  and  the 
rule  made  absolute. 


Henry  Sydam  and  Isaac  II.  Reed,  for  the  use  of  John  II. 
Tennent,  v.  Cornelius  T.  Cannon,  who  had  survived 
Gabriel  Carpenter,  deceased. 

In  an  action  upon  a  judgment  recovered  in  another  State,  it  is  final  and 
conclusive,  not  only  as  to  the  persons  who  were  parties  on  the  record 
to  it  there,  but  also  as  to  all  persons  who  should  have  been  parties  to  it 
there. 

A  bond  given  by  two  members  of  a  firm  for  debt  and  judgment  confessed 
upon  it  by  them,  will  discharge  the  original  joint  liability  of  a  third 
partner  for  it,  because  it  changes  and  extinguishes  the  original  nature 
of  the  debt,  and  thereby  becomes  a  new  debt  of  a  higher  grade  of  the 
partners  giving  the  bond  and  confessing  the  judgment;  and  if  the  other 
partner  afterwards  pays  the  amount  of  the  judgment  to  the  plaintiffs, 
and  takes  an  indorsement  of  it  to  hi.-  own  use  and  benefit,  it  cannot  be 
pleaded  as  a  payment,  or  defence  to  an  action  on  the  judgment  for  the 
use  of  such  partner  against  the  defendants. 

A  person  tor  whose  use  a  judgment  or  suit  is  indorsed,  is  no  party  to  it 
in  a  legal  sense,  and  no  plea  addressed  to  his  right  merely  to  maintain 
the  action  is  good. 

The  payment  of  a  judgment  by  a  person  not  a  party  to  it,  i-  not  a  satis- 
faction or  extinguishment  of  the  judgment,  unless  it  was  so  intended 


432  SUPERIOR  COURT. 

to  be  by  the  person  paying  it;  and  if  indorsed  for  his  use,  it  cannot  be 
pleaded  as  a  payment  by  the  defendant  in  an  action  upon  the  judgment 
against  him. 

This  was  an  action  of  debt,  on  a  judgment  recovered  in 
the  Court  of  Common  Pleas  in  the  State  of  Ohio,  by 
Henry  Sydam  and  Isaac  II.  Reed  against  Cornelius  Can- 
non and  Gabriel  Carpenter.  The  latter  had  since  died, 
and  the  amount  of  the  judgment  having  been  paid  in  Ohio 
to  the  attorney  of  Sydam  &  Ree*d  by  John  II.  Tennent, 
he  had  indorsed  it  upon  the  record  for  his  use.  To  this 
action  upon  the  judgment  numerous  pleas  were  entered, 
and  among  them, — 1.  That  the  said  Tennent,  for  whose 
use  the  suit  was  brought,  was  a  partner  in  business  with 
the  said  Cannon  and  Carpenter,  trading  under  the  name, 
style,  and  firm  of  C.  T.  Cannon  &  Co.,  and  contracted  the 
debt  with  the  said  Sydam  &  Reed,  for  which  the  said  judg- 
ment was  recovered  against  the  said  Cannon  and  Carpen- 
ter, and  as  one  of  said  partners  paid  the  same  to  the  said 
attorney  of  the  said  Sydam  &  Reed  to  and  for  their  use. 

2.  That  the  said  plaintiffs,  Sydam  &  Reed,  never  indorsed 
or  transferred,  nor  directed  the  said  attorney  to  indorse  or 
transfer  the  said  judgment  to  the  use  of  the  said  Tennent. 

3.  That  the  said  plaintiffs  never  authorized  or  directed  the 
present  action  to  be  brought  on  the  said  judgment  against 
the  said  Cannon.  To  these  pleas  a  general  demurrer  was 
entered. 

McFee,  for  the  plaintiffs:  The  objection  to  the  first  plea 
is,  that  it  impeaches  the  final  and  conclusive  nature  of  the 
judgment  on  which  the  action  is  founded,  and  denies  in 
substance  and  effect,  if  not  in  terms,  its  validity,  and  con- 
tradicts the  record  by  pleading  matter  which,  if  true, 
should  either  have  been  pleaded  or  proved  in  bar  of  the 
original  action  in  Ohio,  and  which  defendant  is  estopped 
by  the  judgment  To  set  up  as  a  defence  now  in  this  action. 
For  if  the  jurisdiction  of  the  Court  in  another  State  ap- 
pears, its  judgment  is  final  and  conclusive,  as  much  so  as 
a  domestic  judgment.    Green  v.  Harm  unto,  Piters'  ('.  C.  Rip. 


SYDAM  &  REED  v.  CANNON.  433 

74;  13  Peters,  312;  5  Gill  £  Johns.  500;  9  Mass.  462;  Prit- 
chett  v.  Clark,  4  Harr.  280;  1  Kent's  Com.  279.  It  is  con- 
clusive, not  only  as  to  the  parties  named  in  the  action,  but 
as  to  all  persons  who  should  have  been  parties  to  it.  For 
if  there  was  any  other  person  who  should  have  been  in- 
cluded as  a  party  defendant  in  the  original  action,  or  was 
jointly  indebted  with  the  defendants  named  and  sued  in 
that  action,  it  should  have  been  pleaded  in  abatement,  or 
the  reason  for  the  non-joinder  should  appear  from  the  re- 
cord, or  this  Court  is  bound  to  presume  that  there  was  no 
such  person  jointly  liable  with  them  in  the  transaction.  Or 
if  such  was  the  case — and  it  was  a  good  ground  for  a  plea  in 
bar  to  the  action  either  here  or  there,  being  an  action  ex  con- 
tractu— and  it  had  been  made  to  appear  in  the  action  there, 
it  would  have  been  a  ground  of  nonsuit,  and  the  plaintiffs 
could  not  possibly  have  recovered.  The  Court  is  conse- 
quently bound  to  infer  to  the  contrary,  and  the  judgment 
is,  therefore,  final  and  conclusive,  and  the  record  cannot 
be  impeached  or  contradicted  on  any  such  ground. 

The  remaining  pleas  are  all  defective  and  demurrable, 
for  one  and  the  same  reason.  They  are  each  addressed  to 
the  right  of  J.  II.  Tennent,  for  whose  use  the  present  suit 
is  brought  and  the  judgment  is  indorsed,  to  maintain  this 
action,  and  not  to  the  right  of  Sydam  &  Reed,  who,  not- 
withstanding that  indorsement,  are  still  the  real  and  legal 
plaintiffs  in  this  action.  As  an  evidence  of  this,  tl^e  use 
might  now  be  stricken  out  without  affecting  their  right  to 
recover.  In  the  eye  of  the  law,  Tennent  has  at  best  but 
an  equitable  interest  in  the  claim  when  recovered,  and  is 
not  even  a  plaintiff  in  the  action.  2  Harr.  509;  3  Harr. 
17.  To  allege  and  plead,  therefore,  that  the  plaintiffs 
never  indorsed,  nor  authorized  their  attorney  to  indorse, 
the  judgment  for  his  use,  not  only  contradicts  the  record 
as  certified  under  the  proper  seal  and  signatures  in  the 
State  of  Ohio,  but  would  be  wholly  immaterial,  even  if  it 
were  so;  because  they  are  still  the  only  legal  plaintiffs 
whom  this  Court  can  recognize,  or  know  in  the  prosecu- 
tion of  the  present  action,  and  the  indorsement  of  this,  or 


434  SUPERIOR  COURT. 

any  other  use,  can  have  no  effect  to  defeat  their  right  to 
recover.  The  next  or  third  plea  in  the  series  is  still  more 
peculiar  and  remarkable,  and  comes  nearer  home;  for  it  is 
a  plea  to  the  right  or  authority  of  your  humble  servant,  as 
an  attorney  of  this  Court,  to  bring  this  action  on  the  judg- 
ment for  the  said  plaintiffs.  I  might  have  joined  an  issue 
in  fact  upon  that  allegation  by  traversing  the  plea;  but 
even  admitting  it  to  be  true,  it  is  not  a  matter  to  be  pleaded 
in  bar  of  the  action,  as  a  legal  defence  to  the  right  of  the 
plaintiff  to  recover  in  it.  5  Halst.  Hep.  257;  2  South.  817. 

C.  S.  Layton,  for  the  defendant :  Whatever  may  be  the 
weight  of  the  technical  objections  urged  against  the  first 
and  second  of  these  pleas,  he  had  good  reason  to  believe 
that  the  facts  alleged  in  them  were  strictly  true  and  sus- 
ceptible of  proof,  if  the  evidence  could  be  admitted.  But 
if  not,  then  the  hardship  and  injustice  of  the  matter  would 
be  the  greater,  inasmuch  as  this  judgment  was  obtained 
by  warrant  of  attorney  and  confession,  without  an}T  plea  or 
defence  in  Ohio.  Tenncnt  was,  as  he  had  been  informed 
and  believed,  a  silent  partner  in  the  firm  of  C.  T.  Cannon  & 
Co.,  and  was  jointly  liable  with  him  and  Carpenter  for  the 
original  debt  for  which  this  judgment  was  given ;  and  when 
he  paid  the  amount  of  it  to  the  attorney  of  the  plaintiffs,  it 
was  paid  by  him  as  such,  in  satisfaction  of  the  judgment, 
and  not  with  the  view,  or  with  the  understanding  on  the 
part  of  the  plaintiffs,  that  it  was  to  be  assigned  to  him,  to 
be  afterwards  enforced  and  again  collected  in  their  name 
out  of  his  copartners.  The  judgment  has  been  standing 
for  more  than  ten  years,  perhaps,  since  he  paid  it;  in  the 
meantime  Carpenter  has  died,  and  Cannon  has  recently 
returned  to  this  State,  having  succeeded  to  the  inheritance 
of  some  property  in  this  county  by  the  death  of  his  father, 
and  the  judgment  is  now  indorsed  by  the  original  attorney 
of  the  plaintiffs  in  Ohio,  hut  without  their  knowledge  or 
direction,  as  is  believed,  for  the  use  of  Tennent,  who  lias 
since  sent  it  on  here  for  collection  from  him.  The  case  is, 
therefore,  not  without  substantial  merits   by  way  of  a  just 


SYDAM  &  REED  v.  CANNON.  435 

defence  on  the  part  of  the  defendant,  and  if  the  amount 
were  larger,  redress  would  be  sought  before  another  tribu- 
nal, if  that  defence  should  prove  to  be  unavailable  in  this 
Court.  On  that  point,  however,  he  should  not  enlarge, 
but  content  himself  with  a  brief  reference  to  a  few  autho- 
rities, and  cited  8  Johns.  361;  5  Harr.  344,  and  Ross.  Civil 
Ev.  233. 

By  the  Court:  The  objections  taken  to  these  pleas  by 
the  plaintiffs  on  the  demurrers  are  all  good,  and  for  the 
reasons  which  their  counsel  has  assigned  in  his  argument. 
This  is  an  action  upon  a  judgment  recovered  in  Ohio,  by 
Sydam  &  Reed,  the  plaintiffs,  against  Cornelius  T.  Can- 
non and  Gabriel  Carpenter,  who  are  the  only  parties  de- 
fendant upon  the  record  of  the  suit,  and  as  to  which  the 
record  must  be  held  to  be  final  and  conclusive,  and  can- 
not be  contradicted,  qualified,  or  impeached  in  an  action 
here  upon  it,  by  endeavoring  to  show  that  there  was  an- 
other party,  who  should  have  been  included  in  it.  What- 
ever may  have  been  the  original  liability  of  these  parties 
for  the  debt  when  it  was  first  contracted,  that  liability 
was  discharged  when  Cannon  and  CarpenteT  gave  and  Sy- 
dam k  Reed  accepted  their  bond  for  it,  and  the  nature 
of  the  debt  was  still  further  changed  and  extinguished 
and  made  exclusively  their  debt,  by  the  subsequent  re- 
covery of  the  judgment  against  them  upon  it,  as  it  thereby 
became  a  new  debt  of  a  higher  grade,  a  debt  of  record 
against  them.  There  is  therefore  no  reason  now  for  say- 
ing that  Tennent  is  jointly  interested  or  liable  with  them 
in  this  judgment ;  and  it  was  no  defence,  even  in  Ohio,  to 
say  that  lie  was  jointly  interested  with  them  in  the  original 
transaction,  after  the  bond  of  Cannon  and  Carpenter  had 
been  taken  in  discharge  of  the  debt.  rJ  ne  other  two  pleas 
are  also  immaterial,  and  equally  defective  on  general  de- 
murrer; because  they  are  both  entirely  addressed  to  tin' 
right  of  a  third  person  to  recover,  who  is  not  a  legal  plain- 
titf  in  the  suit.  The  indorsement  of  the  use  may  at  any 
moment    be    stricken    out    without    arleetinu:    the    action. 


436  SUPERIOR  COURT. 

Every  good  plea  in  bar  must  go  to  the  merits  of  the  ac- 
tion, and  must  constitute  a  legal  defence  against  the  rig-lit 
of  the  plaintiff  on  the  record  to  recover,  which  neither  of 
these  pleas  can  be  said  to  do,  as  the  person  for  whose  use 
the  judgment  and  suit  are  indorsed,  is  no  party  in  a  legal 
sense  to  this  action. 

Judgment  must  therefore  be  entered  for  the  plaintiffs 
on  the  demurrers. 

The  case  afterwards  came  up  for  trial  at  the  same  term 
on  the  other  pleas  and  issues  joined  upon  the  record,  one 
of  which  was  payment  of  the  said  judgment  by  the  said 
John  II.  Tennent,  one  of  the  members  of  the  said  firm  of 
C.  T.  Cannon  &  Co.,  when  the  counsel  for  the  defendant 
submitted  it  to  the  jury  on  the  charge  of  the  Court  as  to 
the  defence  presented  by  this  plea.  It  appeared  from  the 
evidence  adduced  on  both  sides  that  the  amount  of  the 
judgment  had  been  paid  by  Tennent  to  the  plaintiffs,  and 
the  point  which  he  wished  to  present  was,  that  the  plain- 
tiffs were  not  entitled  to  recover  in  this  action,  unless 
they  could  show  that  it  was  assigned  by  them  to  him  at 
the  time  of  the  payment  of  it  by  him,  and  not  afterwards. 
1  U.  S.  Dig.  329,  sec.  84. 

The  counsel  for  the  plaintiffs  replied,  and  cited  2  Saund. 
PL  cf  Ec.  713;  2  Greenl.  Ec,  sec.  51  i). 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  That  this 
being  an  action  of  debt  in  this  Court,  on  a  judgment  re- 
covered before  a  tribunal  of  competent  jurisdiction  in  the 
State  of  Ohio,  by  Henry  Sydam  and  Isaac  II.  Reed,  against 
Cornelius  T.  Cannon  and  Gabriel  Carpenter,  instituted 
here  in  the  names  of  the  plaintiffs  against  Cannon,  the 
surviving  defendant  in  the  judgment,  it  must  be  taken 
and  considered  as  final  and  conclusive,  not  only  as  to  the 
persons  who  were  the  parties  to  the  suit  in  that  State,  but 
also  as  to  all  persons  who  should  have  been  parties  plain- 
tiffs or  defendants  on  the  record  of  it  there.  It  is  conse- 
quently incompetent  for  the  defendant  to  allege  or  [trove, 
in   the   action    upon  it  here,  that  Tennent,  for  whose   use 


SYDAM  &  REED  v.  CANNON.  437 

the  judgment  was  afterwards  indorsed,  was  in  any  man- 
ner bound  by  it,  or  was  in  any  way  a  party  to  it  as  a  judg- 
ment;  if  indeed  sucli  is  the  purport  and  intent  of  his  plea, 
or  of  the  averment  contained  in  it,  which  alleges  that  he 
was  one  of  the  partners  of  the  said  firm  of  C.  T.  Cannon 
&  Co.,  and  paid  the  judgment  to  the  plaintiffs.  For  if  it 
was  a  fact,  as  we  have  before  remarked  in  giving  judg- 
ment on  the  demurrers  in  the  case,  that  Tennent  was  a 
partner  with  Cannon  and  Carpenter  in  that  firm  at  the 
time  when  the  original  debt  was  contracted,  for  which  the 
bond  was  given  by  Cannon  and  Carpenter,  and  on  which 
they  afterwards  confessed  judgment  for  it  to  the  plaintiffs, 
his  original  liability  with  them  was  entirely  discharged 
and  extinguished  by  it,  and  it  thereby  became  their  sole 
debt,  and  for  which  the}7  alone  were  individually  responsi- 
ble, and  not  as  partners ;  the  partnership  nature  of  the 
debt  being  thus  changed  and  discharged  by  it.  Being  a 
stranger  then  to  the  judgment,  and  in  no  manner  bound 
by  it,  the  plea  that  Tennent  paid  it  to  the  plaintiffs,  is  not 
a  good  plea,  unless  it  is  further  shown  that  it  was  paid  by 
him  in  full  and  complete  satisfaction  and  discharge  of 
the  judgment  as  against  the  defendant;  in  which  case,  it 
would  have  been  a  payment  by  them,  and  should  have 
been  properly  so  pleaded  by  them.  A  defendant  in  a 
judgment  may  authorize  or  empower  any  one  to  pay  it 
for  him,  and  if  the  payment  is  made  for  the  purpose  of 
satisfying  and  extinguishing  it  entirely,  it  is  his  payment, 
and  the  debt  is  discharged  ;  but  if  it  is  not  done  with  this 
view,  and  the  party  so  paying  it  takes  an  assignment  of  it 
or  has  it  indorsed  for  his  use,  it  lias  no  such  effect,  and 
such  a  purchase  or  acquisition  of  the  benefit  of  the  judg- 
ment by  him,  cannot  be  pleaded  in  bar  as  a  payment,  in 
an  action  upon  it  against  the  defendant. 

Verdict  for  the  plaintiffs. 
McFcc,  for  plaint  ill's. 

C.  S.  Lai/ion,  for  defendant. 

Notk.   Houston,  J.,  did  not  sit  in  this  case,  having  boon  of  counsel  for 
the  plaintiffs. 


438  SUPERIOR  COURT. 


Samuel  II.  Horsey  and  "Wife  v.  Thomas  C.  Horsey 's 
Executors. 

The  testator  by  his  will,  "after  his  just  debts  and  funeral  expenses  were 
paid,  and  his  wife's  thirds  were  taken  out,"  bequeathed  and  devised 
certain  portions  of  his  real  estate  and  certain  pecuniary  and  specific 
legacies,  and  also  the  residue  of  his  real  and  personal  estate,  to  his  two 
children.  Held,  that  the  wife  was  entitled  to  one-third  of  the  personal, 
as  well  as  one-third  of  his  real  estate  under  his  will,  after  the  payment 
of  his  debts  and  funeral  expenses,  to  be  ascertained  before  deducting 
the  amount  of  the  legacies. 

This  was  a  ease  stated,  involving  the  construction  of  the 
last  will  and  testament  of  Thomas  C.  Horsey,  deceased. 

The  wife  of  the  plaintiff,  Samuel  11.  Horsey,  was  the 
widow  of  the  testator,  Thomas  C.  Horsey,  deceased,  to 
whom  he  bequeathed  by  the  said  last  will  and  testament 
as  follows  :  "  And  after  my  just  debts  and  funeral  expenses 
arc  paid,  and  my  wife's  thirds  are  taken  out,  I  give,  devise 
and  bequeath  as  follows :  to  my  beloved  wife,  Ellen  M. 
Horsey,  my  horse  and  four-wheel  carriage,  one  bureau, 
one  buffalo  robe,  one  negro  woman,  named  Emeline,  until 
she  shall  arrive  at  the  age  of  thirty-four  years,  which  will 
be  on  the  25th  day  of  August,  I860,  and  then  to  be  free." 
The  testator  then  devised  and  bequeathed  in  the  succeeding 
items  of  his  will,  to  his  daughter,  Martha  J.  Horsey,  certain 
portions  of  his  real  estate  and  a  negro  girl,  named  Mary, 
to  serve  to  the  age  of  twenty-eight,  and  then  to  be  free, 
and  to  his  son,  Thomas  Clayton  Horsey,  certain  other  por- 
tions of  his  real  estate  and  a  pecuniar)'  legacy  of  one  thou- 
sand dollars,  payable  without  interest  at  the  age  of  twenty- 
one  years,  also  a  negro  boy,  named  John,  to  serve  until  the 
age  of  thirty  years,  and  then  to  be  free.  "All  the  rest 
and  residue  of  his  estate,  both  real  and  personal,  to  lie 
equally  divided  between  his  said  son,  Thomas  Clayton  Hor- 
sey, and  his  daughter,  Martha  J.  Horsey,  their  heirs  and 
assigns  forever." 

The  residue  of  the  personal   estate  of  the  testator,  after 


HORSEY  &  WIFE  v.  HORSE Y'S  EXRS.  439 

the  payment  of  his  debts  and  funeral  expenses  and  deduct- 
ing the  legacies  bequeathed  in  the  will,  amounted  to 
$7582. 

The  questions  submitted  were,  1.  Whether  the  plain- 
tiffs, the  said  Samuel  H.  Horsey  and  wife,  were  entitled 
to  demand  and  receive,  in  right  of  the  said  Ellen  M.  Hor- 
sey, the  relict  of  the  testator,  from  the  defendants,  his 
executors,  the  one-third  part  of  his  personal  estate  after  the 
payment  of  his  debts  and  funeral  expenses  ?  and  2.  If  they 
were  so  entitled,  whether  that  third  was  to  be  ascertained 
and  paid  without  deducting  from  the  amount  of  his  perso- 
nal estate  the  specific  and  pecuniary  legacies  above  men- 
tioned ? 

By  the  Court:  Our  opinion  is,  that  Ellen  M.  Horsey,  the 
widow  of  the  testator,  took  under  his  will,  in  addition  to 
the  specific  legacies  bequeathed  to  her,  the  one-third  part 
of  his  personal  estate  after  the  payment  of  his  debts  and 
funeral  expenses,  to  be  ascertained  before  deducting  from 
the  aggregate  amount  of  it  the  specific  and  pecuniary 
legacies  disposed  of  in  his  will;  and  that  such  was  the  in- 
tention of  the  testator.  The  first  devise  or  bequest  in  his 
will  is  in  these  words  :  "  After  my  just  debts  and  funeral 
expenses  are  paid,  and  my  wife's  thirds  are  taken  out,  I 
give,  devise  and  bequeath"  as  follows  in  his  will,  and  he 
then  proceeds  to  dispose  of  the  balance  of  his  estate,  both 
real  and  personal,  as  stated,  and  without  recurring  again 
to  his  wife,  except  with  reference  to  a  few  particular  arti- 
cles afterwards  specifically  bequeathed  to  her.  The  only 
question  that  can  arise  in  reading  these  words  is,  what 
was  the  meaning  of  the  testator  when  he  employed  the 
terms,  and  after  "my  wife's  thirds  are  taken  out?"  What 
did  he  mean  by  his  wife's  thirds?  Did  he  mean  her  third 
part  of  his  real  estate,  to  which  she  would  be  entitled  under 
the  <lo\ver  act  of  l!Sl(i,  independent  of  the  will,  or  her 
"thirds''  in  his  real  and  personal  estate,  which  a  different 
law  would  have  given  her  in  case  he  had  died  intestate, 
after  his  just  debts  and   funeral   expenses  and  the  costs  of 


440  SUPERIOR  COURT. 

settling  his  estate  were  deducted  and  paid?  The  words 
"'her  thirds"  by  themselves  are  vague  and  indefinite  and 
mean  nothing,  unless  we  interpret  them  with  reference  to 
one  or  the  other  of  these  acts,  for  the  testator  must  himself 
have  had  reference  to  one  or  the  other  of  them  when  he 
used  it;  and  if  so,  to  which  of  them  did  lie  refer,  in  order 
to  ascertain  and  determine  his  meaning?  In  the  case  of 
Burton's  will,  which  was  similar  to  this,  at  least  in  this  re- 
spect, the  Court  held  the  allusion  of  the  testator  to  be  to 
the  latter,  or  the  intestate  law,  in  order  to  ascertain  what 
he  meant  in  that  case  by  his  "  wife's  lawful  part."  Barton 
v.  Barton  ct  al.,  4  Harr.  Jiep.  38.  So  we  think  in  this  case 
the  reference  is  to  the  intestate  law,  which  is  the  only  law 
that  allows  a  wife  her  thirds,  literally  speaking,  out  of  her 
husband's  estate;  that  is  to  say,  one-third  of  his  real  and 
one-third  of  his  personal  estate  after  his  debts,  &c,  are  paid, 
when  he  leaves  issue  to  survive  him.  Judgment  must  be 
given  for  the  plaintiffs  accordingly. 

McFee,  for  the  plaintiffs. 
Moore,  for  the  defendants. 


"William  X.  Cannon  ?\  Nathaniel  Horsey. 

If  fi  person  impounds  swine  ilamagp-fcasant,  and  kill  thorn  while  so  in  his 
possession,  or  injure  them,  so  that  they  afterwards  die  when  set  at  largo, 
it  will  hi-  such  a  destruction  as  will  constitute  a  conversion  in  law  of 
tie'  property,  and  trover  will  lie  for  it.  Hut  if  the  same  is  done-  while 
the  --wine  are  damo'/e-feasant,  or  running  at  large,  and  not  so  in  his 
possession, 'trespass,  and  not  trover,  is  the  proper  remedy. 

The  provision  of  the  statute  in  regard  to  cn.se.  and  trespass  has  not  aho- 
li.-hed  the  distinction  between  the  two  actions  in  such  a  case. 

Tins  was  an  action  of  trover  to  recover  the  value  of  cer- 
tain swine  of  the  plaintiff,  killed   by  the  defendant.     The 


CANNON  v.  HORSEY.  441 

pleas  were,  not  guilty,  the  act  of  limitations,  and  that  the 
defendant  took  the  swine  damage-feasant.  To  the  last  plea 
the  plaintiff  replied  specially,  that  the  defendant's  fences 
and  inclosures  were  defective  and  insufficient,  by  reason 
whereof,  &c.  The  defendant  rejoined,  that  the  fence-viewers 
had  pronounced  his  fence  a  lawful  fence,  and  that  he  there- 
upon recovered  a  judgment  before  a  justice  of  the  peace 
for  the  damages  assessed  by  them  pursuant  to  the  statute, 
for  the  trespass  and  injury  then  and  there  committed  by 
the  swine.  Surrejoinder  by  the  plaintiff,  that  the  defendant 
killed  the  swine,  &c.  Rebutter  traversing  the  rejoinder  of 
the  plaintiff,  and  issue  by  the  defendant. 

The  proof  was,  that  the  plaintiff's  hogs  had  been  tres- 
passing on  the  premises  of  the  defendant  and  that  he  im- 
pounded them,  but  afterwards  turned  them  at  large,  but 
trespassing  upon  him  again  in  a  short  time,  he  attacked 
them  with  sticks  and  dogs,  and  shot  among  them  with  his 
gun.  Three  or  four  of  the  swine  soon  afterwards  died.  It 
was  also  proved  that  the  defendant  had  called  out  the 
fence-viewers  to  examine  the  fences  on  his  premises,  and 
that  they  had  adjudged  them  to  be  lawful  and  pursuant  to 
the  statute,  and  had  assessed  damages  in  his  favor  for  the 
trespass  committed. 

For  the  plaintiff,  it  was  insisted  that  this  constituted  no 
defence  for  killing  the  hogs. 

On  behalf  of  the  defendant,  the  objection  was  taken  that 
the  action  for  the  injury  complained  of  should  have  been 
trespass  and  not  trover,  as  no  conversion  of  the  property 
by  the  defendant  had  even  been  attempted  to  be  shown. 
For  the  plaintiff,  it  was  replied  that  the  distinction  be- 
tween ease  and  trespass  had  recently  been  abolished  by 
statute,  Rev.  Code,  379,  see.  11,  and  that  such  an  objection 
no  longer  lay  to  the  form  of  the  action,  and  if  trespass 
would  lie,  trover  would  lie  also. 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  That  if  the 
swine  were  trespassing  on  the  premises  of  the  defendant, 
and  broke  through  his  inclosures,  which  had  been  found 

29 


442  SUPERIOR  COURT. 

by  the  fence-viewers  to  be  lawful  and  sufficient  fences,  he 
had  a  right  to  take  them  up,  and  it  was  no  conversion  on 
his  part  to  impound  them.  But  if  while  they  were  thus  in 
his  possession  he  killed  any  of  them,  or  did  any  injury  to 
them,  by  reason  of  which  they  died  after  he  turned  them 
out,  it  would,  in  the  opinion  of  the  Court,  amount  to  such 
a  destruction  of  the  property  as  would  constitute  in  law  a 
conversion  of  it,  and  for  which  the  present  action  would 
lie.  If,  however,  the  defendant  killed  them  in  the  act  of 
trespassing  upon  his  corn,  or  shot  them  while  runnin'g  at 
large,  and  when  they  were  not  so  in  his  possession,  in  con- 
sequence of  which  they  either  then  or  afterwards  died,  he 
would  not  be  liable  in  trover,  but  would  be  in  trespass  for 
the  loss  which  the  plaintiff  had  sustained  by  it.  For  the 
provision  of  the  statute  referred  to  had  not  abolished  the 
distinction  between  the  two  actions,  to  the  extent  sug- 
gested by  the  counsel  for  the  plaintiff.  The  object  of  that 
provision,  as  we  have  frequently  had  occasion  before  to 
rule,  was  simply  to  abolish  the  technical  and  often  refined 
distinction,  existing  at  common  law,  between  actions  of 
trespass  on  the  case  for  consequential  damages  and  actions 
of  trespass  vi  ct  armis  for  direct  and  immediate  injuries,  so 
far  as  the  forms  of  the  actions  merely  were  concerned  in 
such  cases,  and  nothing  more. 

Verdict  for  defendant. 
C.  S.  Layton,  for  plaintiff. 

Robinson,  for  defendant. 


Tiik  State,  for  the  use  of  Gideon   Burton,  v.   EIenky  F, 
Rodney  and  Henry  F.  Hall. 

After  a  general  leave  granted  to  amend  the  pleadings  without  qualiliea- 
tion.  th"  Court  will  ii- >t ,  "ii  motion,  strike  out  a  ph-a  of  the  =ta! 
limitations  entered  under  the  leave.      Hut  if  objected  to  at  the  time  of 


BURTON  v.  RODNEY  et  al.  448 

the  application  to  amend,  after  issue  joined,  the  Court  will  not  permit 
it  to  be  entered. 
In  an  action  on  an  executor's  bond,  the  party  for  whose  use  the  suit  was 
brought  for  a  legacy,  recovering  judgment,  was  ordered  to  enter  into 
bond  to  the  executor  to  refund,  to  meet  outstanding  debts,  &c,  and  ex- 
ecution stayed  till  the  order  should  be  complied  with. 

This  was  an  action  of  debt,  against  Henry7  F.  Rodney 
and  Henry  F.  Hall,  on  the  testamentary  bond  of  the  former, 
as  the  executor  of  Robert  Burton,  deceased,  for  one-fourth 
of  the  residue  of  his  personal  estate,  bequeathed  to  Gideon 
Burton. 

Charles  M.  Cullen,  for  the  defendants,  moved  to  strike 
out  the  replication  of  the  statute  of  limitations  to  the  plea 
of  set-off,  because  it  was  entered  by  the  plaintiff  after  the 
case  was  at  issue  on  its  merits,  on  leave  granted  by  the 
Court  to  amend ;  for  the  Court  will  not  permit  the  plea  of 
the  statute  of  limitations,  or  any  other  than  a  plea  to  the 
merits,  to  be  entered  after  the  case  is  at  issue,  under  leave 
to  amend.    2  Harr.  444 ;  3  Harr.  75. 

By  the  Court :  In  the  cases  cited  the  counsel  was  required 
by  the  Court,  at  the  time  of  making  his  application  for 
leave  to  amend,  to  state  the  nature  of  the  plea  he  desired 
to  enter,  and  it  appearing  to  be  a  plea  not  to  the  merits, 
but  of  the  statute  of  limitations,  the  leave  was  refused. 
But  in  this  case  no  such  question  was  made  at  the  time  of 
the  application,  and  a  general  leave  was  granted  without 
qualification  to  amend,  which  authorized  the  plaintiff  to 
reply  de  novo,  if  lie  saw  proper,  and  it  was  therefore  now 
too  late  to  object  to  the  replication,  or  to  move  to  strike  it 
from  the  record. 

On  the  trial  the  plaintiff  recovered  a  verdict  for  $386.78, 
for  which  the  Court  gave  judgment.  But  as  it  was  alleged 
and  made  to  appear  on  the  part  of  the  executor  that  the  es- 
tate was  not  yet  settled,  and  that  there  were  outstanding 
debts  against  it  still  unpaid,  the  Court  made  an  order,  requi- 
ring the  party  for  whose  benefit  the  suit  was  prosecuted,  to 


444  SUPERIOR  COURT. 

enter  into  bond  with  security  to  the  executor  to  refund, 
&c,  pursuant  to  the  provisions  of  the  statute.  Rev.  Code, 
305,  sec.  37 ;  Fitchett  v.  Dolbee,  3  Harr.  368.  The  Court  also 
directed  stay  of  execution  on  the  judgment  to  be  entered, 
until  the  order  should  be  complied  with. 

C.  S.  Laylon,  for  plaintiff. 

C.  M.  and  E.  D.  Cullen,  for  defendants. 


Jonathan  Milman,  Jr.,  v.  Wilson  Shockley. 

A  dog  that  kills,  wounds,  or  worries  sheep,  may  be  killed  by  any  person 
with  impunity. 

Action  of  trespass  for  killing  two  dogs  of  the  plaintiff, 
valued  at  thirty  dollars. 

It  was  proved  that  the  plaintiff  was  hunting  at  night 
with  the  dogs,  which  were  hounds,  and  was  near,  but  not 
on  the  premises  of  the  defendant,  when  a  gun  was  tired, 
and  on  coming  up  with  his  dogs,  he  found  one  of  them 
shot  in  a  public  pass-way,  and  the  other  further  on  in  the 
field  of  a  neighbor  of  the  defendant.  The  defendant  soon 
afterwards  came  up  with  a  gun  in  his  hands,  and  admitted 
that  he  had  shot  them,  but  alleged  that  he  heard  his  sheep 
running,  and  a  bell  jingling,  as  if  they  were  pursued  by 
them,  though  he  could  not  say  that  the  dogs  were  actually 
in  pursuit  of  them,  as  it  was  dark,  and  he  could  not  sec 
them  until  they  passed  near  him  soon  afterwards,  when  he 
fired  at  them,  but  he  did  not  know  whether  he  had  hit 
them;  one  thing,  however,  he  knew,  that  his  sheep  had 
been  frequently  attacked  by  them.  It  was  also  proved  that 
one  of  the  dogs  had  before  been  seen  to  chase  and  worry 
sheep  belonging  to  another  person. 


MILMAN  v.  SHOCKLEY.  445 

On  this  evidence  a  question  arose,  and  was  argued  by 
the  counsel  as  to  the  meaning  and  extent  of  the  act  of  As- 
sembly on  the  subject.  Rev.  Code,  142. 

C.  S.  Layton,  for  the  plaintiff:  It  could  not  be  the  mean- 
ing of  the  act  that  it  should  be  lawful  for  any  one,  at  any 
time,  without  limitation  of  days,  months,  or  years,  to  kill 
a  dog  upon  the  mere  statement  of  another,  that  at  some 
time  or  other  he  had  seen  him,  in  the  language  of  the  law, 
"  kill,  wound,  or  worry  a  sheep,"  without  the  sanction  of 
an  oath,  or  any  regard  to  the  credibility  of  the  witness 
making  the  statement.  And  although  the  statute  made  it 
lawful  for  any  person  to  kill  such  dog,  did  not  the  rights 
of  property  require  that  any  one  who  assumed  to  exercise 
this  summary  power  of  killing  the  dog,  should  be  at  least 
prepared  to  prove,  and  to  take  the  burden  of  proving,  that 
either  he  saw  the  dog  in.  the  guilty  act,  or  by  some  good 
and  reliable  and  sworn  witness,  that  he  had  been  guilty  "of 
it  beyond  a  doubt ;  and  furthermore,  that  he  had  exercised 
this  high  prerogative,  vested  in  sheep-owners  and  every 
malignant  dog-hater,  within  a  reasonable  time  after  the 
offence  had  been  committed  ?  Did  not  the  statute  reason- 
ably imply  that  any  one  who  took  upon  himself  the  respon- 
sibility of  exercising  this  summary  power  of  destroying 
another  man's  property,  even  of  this  nature,  should  him- 
self have  seen  the  dog  actually  attacking  sheep,  and  that 
he  thereupon  speedily  despatched  him,  not  six  months,  or 
a  year,  or,  perhaps,  six  years  afterwards  ?  There  was  no 
proof  in  this  case  tliat  the  dogs  were  even  pursuing  the 
defendant's  sheep,  much  less,  that  they  had  killed,  wound- 
ed, or  worried  them.  It  was  well  known  to  be  the  natural 
propensity  of  every  puppy  or  young  dog  to  pursue  any 
animal  that  would  flee  from  it;  and  yet  under  such  a  con- 
struction of  the  act  as  had  been  stated,  it  would  be  lawful 
lor  any  one  to  slay  such  puppy  for  such  an  act,  years  after- 
wards, notwithstanding  he  may  have  turned  out  in  the 
mean  time  to  be  a  sedate  and  sagacious  dog  of  the  most 
useful  and  unexceptionable  qualities. 


446  SUPERIOR  COURT. 

For  the  defendant,  it  was  insisted  that  the  Legislature, 
in  its  wisdom,  had  seen  proper  to  place  all  sheep-killing 
dogs  and  sheep-worrying  puppies  in  the  category  of  public 
nuisances,  which  anybody  might  abate,  and  put  out  of  th,e 
pale  which  the  law  had  provided  for  the  protection  of  the 
rights  of  property.  That  the  Legislature  had,  so  to  speak, 
outlawed  all  such  worthless  animals;  and  if  the  jury  were 
satisfied  from  the  proof  that  the  dogs  of  the  plaintiff  had  at 
any  time  killed,  wounded,  or  worried  sheep,  the  defendant 
might  kill  them  with  impunity. 

And  of  this  opinion  was  the  Court,  and  so  charged  the 

jury- 
Verdict  for  the  defendant. 

C.  S.  Lay  ton,  for  plaintiff. 

McFee  and  W.  Saulsbury,  for  defendant. 


The  State,  for  the  use  of  Elizabeth  C.  Deputy,  by  her 
guardian,  Levin  Pettyjohn,  v.  David  Bloxom  and  Philip 
C.  Jones. 

In  a  suit  by  the  State  for  the  use  of  an  heir-at-law  on  an  administration 
bond  for  breaches  of  the  condition,  in  not  filing  an  inventory  of  the 
goods  and  chattels  in  six  months,  and  not  rendering  his  account  in  one 
year  after  his  appointment,  it  is  no  defence  to  the  action  to  plead  that 
during  the  pendency  of  it,  the  administrator  has  been  duly  removed 
from  office,  and  an  administrator  de  bonis  non  has  been  appointed.  But 
without  proof  of  special  damage  by  reason  of  the  breaches  assigned,  the 
plaintiff  can  only  recover  nominal  damages. 

Debt  on  administration  bond  for  the  use  of  Elizabeth 
C.  Deputy  against  David  Bloxom  as  the  administrator  of 
Nathaniel  Deputy,  deceased,  and  Philip  C.  Jones,  his 
surety.  There  were  sundry  breaches  assigned  in  the  nnrr, 
as  is  usual  in  such  cases,  and  among  them  that  the  adminis- 
trator had  not  filed  an  inventory  and  appraisement  of  the 


STATE  use  of  DEPUTY  v.  BLOXOM  &  JONES.  447 

goods  and  chattels  of  the  deceased  and  a  list  of  the  debts 
due  him,  in  the  Register's  office,  within  six  months  after 
his  decease ;  and  in  the  next  place,  that  he  had  not  rendered 
a  just  and  true  account  of  his  administration  within  one 
year  from  the  date  of  his  appointment  as  such  administra- 
tor. To  all  the  breaches  assigned  the  defendants  filed  sun- 
dry pleas,  on  which  issues  were  joined ;  but  at  the  ensuing 
term  they  obtained  leave  to  amend,  artd  the  cause  was  con- 
tinued, after  which  they  entered  the  following  additional 
pleas  generally  to  the  breaches  assigned  :  1.  That  since 
the  issues  above  joined,  David  Bloxom  had  been  removed 
from  the  administration  of  the  said  estate  by  the  Orphans' 
Court,  and  been  ordered  by  the  said  Court  without  delay 
to  pay  and  deliver  all  the  unadministered  goods  and  chat- 
tels, rights  and  credits,  moneys,  securities,  books  and  pa- 
pers, belonging  to  the  estate  of  said  deceased,  to  William 
F.  Jones,  who  was  appointed  receiver  thereof  by  said  Court ; 
and,  2.  That  since  the  above  issues  were  joined,  the  said 
William  F.  Jones  had  been  duly  appointed  by  the  Register 
of  the  county,  and  was  now  the  administrator  de  bonis  non 
of  the  said  Nathaniel  Deputy,  deceased,  and  was  duly  en- 
titled to  receive  the  same.  To  these  latter  pleas  a  general 
demurrer  was  entered  by  the  plaintiff,  and  the  only  ques- 
tion for  the  Court  to  consider  was,  whether  these  pleas 
were  any  answer  to  the  breaches  above  specially  set  forth, 
and  whether  the  plaintiff  was  not  entitled  to  a  judgment 
thereon  for  nominal  damage*?  at  least. 

By  the  Court:  For  the  plaintiff,  it  is  contended  in  this 
case,  that  having  instituted  this  suit  for  the  breaches  alleged 
and  set  forth  of  the  condition  of  the  administration  bond, 
and  the  same  being  pending  and  at  issue  in  this  Court  at 
the  time  of  the  removal  of  the  administrator  from  the  ad- 
ministration of  the  estate,  and  the  fact  of  these  breaches 
not  being  denied  by  the  pleadings  in  the  case,  it  is  no 
defence  to  her  right  to  recover  on  them,  to  allege  that 
removal  and  the  appointment  of  an  administrator  de  bonis 
nun  in  his  place,  and  that  she  is  consequently  still   entitled 


448  SUPERIOR  COURT. 

to  maintain  the  suit  against  the  first  administrator  and  his 
surety,  notwithstanding  his  removal,  and  to  recover  what- 
ever damages  she  may  have  sustained  by  reason  of  these 
breaches ;  whilst  the  defendants  on  the  other  hand  insist, 
that  by  one  of  the  conditions  of  the  bond,  the  goods  and 
chattels,  rights  and  credits,  moneys,  books  and  papers  un- 
administered,  wrere,  upon  his  removal,  to  be  delivered  to 
the  receiver  appointed  by  the  Orphans'  Court,  and  after- 
wards to  the  administrator  de  bonis  non  on  his  appointment 
by  the  Register,  and  therefore  it  is  not  competent  for  the 
State,  for  the  use  of  the  heirs  and  distributees  of  the  residue 
of  the  personal  estate,  to  continue  and  maintain  the  action 
now,  but  that  the  same  has  abated  by  the  removal  of  the 
administrator  against  whom  it  was  instituted. 

As  to  the  breach  alleged  in  the  narr,  that  the  adminis- 
trator, Bloxom,  had  not  paid  over  to  the  party  for  whose 
use  this  suit  is  brought,  her  share  of  the  residue  of  the 
personal  estate  of  the  deceased,  we  consider  the  pleas  in 
question  a  good  defence,  according  to  the  principle  ruled  in 
the  case  of  Burton's  Administrator  v.  Tunnell  et  al.,  5  Harr. 
182,  whatever  opinion  we  might  have  to  the  contrary,  if  it 
were  a  hew  question,  so  far  at  least  as  the  precise  point 
ruled  in  tl>at  case  is  concerned:  But  the  question  presented 
here  did  not  arise  in  that  case.  That  was  a  suit  by  a  suc- 
ceeding against  a  removed  administrator  and  his  sureties 
on  his  bond,  to  recover  a  residue  remaining  in  his  hands 
at  the  time  of  his  removal,  for  distribution  among  the 
heirs-at-law,  the  debts  against  the  estate  having  been  set- 
tled. But  here  the  action  is  by  an  heir-at-law  against  the 
removed  administrator  and  surety,  for  not  filing  an  inven- 
tory and  rendering  an  account  of  his  administration  within 
the  time  appointed  in  the  condition  of  his  bond,  and  fixed 
by  law.  These  are  breaches  for  which  the  succeeding 
administrator  could  maintain  no  action  on  the  bond,  be- 
cause there  is  no  stipulation  or  provision  in  the  condition 
of  the  bond  to  give  him  that  right,  and  he  is  not  affected 
by  them,  since  he  is  in  no  manner  liable  for  these  breaches 
himself,  as  they  are  no  omissions  of  his.     It  appears  from 


OBIER  v.  NEAL.  449 


the  record  that  administration  on  the  estate  was  committed 
to  Bloxom,  August  20th,  1853,  and  that  he  was  removed 
on  the  4th  of  March,  1857.  It  was  his  duty  to  have  filed 
his  inventory  in  six  months,  and  passed  his  account  in  one 
year  after  his  appointment.  But  this,  it  is  alleged  in  the 
breaches  in  question,  he  failed  to  do,  and  the  allegation  is 
not  denied,  hut  is  in  effect  confessed  in  the  pleas  demurred 
to,  which  seek  to  avoid  the  breaches  by  a  special  plea, 
which  is  no  defence  to  them,  for  the  reasons  which  we  have 
before  stated.  This  is  not  a  suit  against  Bloxom  as  admin- 
istrator, and  never  was,  but  is  against  him  and  his  surety 
individually  and  personally.  Therefore,  there  is  no  reason 
for  saying  that  it  has  abated  by  his  removal  from  the  ad- 
ministration, and  the  appointment  of  another  to  succeed 
him  in  the  office.  Judgment  must  be  rendered  for  the 
plaintiff  on  the  demurrer;  but  as  no  special  damage  is 
shown  by  reason  of  the  breaches  complained  of,  it  can  only 
be  for  the  nominal  sum,  besides  her  costs  of  suit. 


C.  S.  Layton,  for  the  plaintiff. 
W.  Saulsbury,  for  the  defendants. 


Joshua  Obier  v.  Joseph  Neal,  William  Xeal,  and 
William  II.  Neal. 

son  cannot  justify  an  assault  and  battery  in  defence  of  his  father,  if  the 
latter  was  the  aggressor  and  a  trespasser  from  the  beginning  of  the 
combat  with  another  ;  but  if  he  was  not,  the  son  can  then  only  justify 
such  a  degree  of  force  as  is  necessary  for  the  father's  defence  and  se- 
curity from  the  attack  of  the  other  party. 

Action  for  an  assault  and  battery.  Joseph  Neal  as- 
saulted Obier  with  a  large  stick,  uplifted  with  both  bands, 
and  drawn   back  in  a  threatening  manner.     Obier  seized 


450  SUPERIOR  COURT. 

a  small  one,  but  which  he  did  not  raise,  but  held  in  his 
hand  by  his  side,  when  Neal  struck  him  a  hard  blow  on 
the  top  of  his  head  with  his  stick;  and  then  Obier  returned 
the  blow  with  his  stick,  but  with  less  violence,  on  the  side 
of  Neal's  head.  They  then  dropped  their  sticks  and  closed 
with  each  other,  when  William  Neal  seized  the  plaintiff 
by  the  right  arm,  and  while  he  thus  held  him,  William  II. 
Neal  caught  up  the  stick  which  Joseph  Neal  had  dropped, 
and  struck  the  plaintiff  Obier  a  severe  blow  over  the  head 
with  it.  William  II.  Neal  pleaded  a  justification  of  his 
assault  and  battery  upon  the  plaintiff  in  defence  of  his 
father,  Joseph  Neal;  and  upon  this  evidence  the  counsel 
on  both  sides  invoked  the  charge  of  the  Court  as  to  the 
sufficiency  of  his  plea  of  justification  under  the  circum- 
stances. 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  That  to  sus- 
tain the  plea  it  must  appear  that  the  father  was  first  assailed 
by  the  plaintiff,  and  was  resisting  his  attack,  when  the  son 
interfered  to  defend  him.  For  if  the  father  was  the  aggres- 
sor and  committed  the  first  assault,  and  was  consequently 
a  trespasser  from  the  beginning  of  the  combat,  and  was  not 
himself  justifiable  in  the  assault  and  battery  committed  by 
him  upon  the  plaintiff,  then  the  plea  of  the  son  could  not 
avail  him,  for  he  became  a  co-trespasser  with  his  father, 
and  was  liable  with  him  in  the  action.  But  if  the  father 
was  not  the  aggressor,  and  a  trespasser  himself  from  the 
beginning  of  the  fight,  and  was  only  repelling  the  attack 
of  the  plaintiff  in  his  own  defence,  when  the  son  inter- 
posed, as  he  might  lawfully  do  in  such  a  case  in  defence 
of  his  parent,  then  he  would  not  be  liable;  provided  he 
used  only  such  force  as  the  danger  to  which  his  father  was 
exposed  at  the  time  rendered  necessary  for  his  defence 
and  security.  li\  however,  he  exceeded  that  degree  of 
force,  even  under  such  circumstances,  he  would  still  he 
liable. 

Verdict  for  the  plaintiff. 

('.  »S'.  Ijnjtou,  for  plaintiff. 

W.  Sauhbimj,  for  defendants. 


NEW  CASTLE  COMMON  v.  STEVENSON.       451 


Trustees  of  New  Castle  Common  v.  Jonathan  Stevenson. 

In  declaring  upon  a  general  covenant,  or  clause  in  a  written  instrument, 
with  a  qualification,  or  exception  occurring  in  a  subsequent  and  distinct 
clause,  or  proviso  of  the  covenant,  or  instrument,  it  is  not  necessary  for 
the  plaintiff  either  to  state,  or  negative  the  qualification,  or  exception, 
in  the  declaration. 

This  was  an  action  of  covenant  on  a  lease,  the  covenants 
of  which  were,  that,  during  the  term,  the  tenant,  the  de- 
fendant, should  keep  the  buildings,  houses,  outhouses, 
and  other  tenements,  and  all  hedges,  fences,  gates,  &c,  in 
good  order  and  repair,  using  materials  of  good  quality 
and  fitting  therefor;  provided,  however,  that  if  the  acting 
committee  of  said  trustees  should  at  any  time,  during  the 
term,  be  of  opinion  that  the  roofs  of  the  buildings  on  the 
premises  could  not  be  further  repaired  to  advantage,  and 
that  new  roofs  would  be  required  thereon,  then  the  same 
should  be  done  at  the  proper  cost  and  charge  of  said 
trustees.  On  which  two  breaches  were  assigned  by  the 
plaintiffs;  first,  for  not  keeping  the  fences  and  hedges  in 
repair;  and,  secondly,  for  not  keeping  the  buildings,  houses, 
and  outhouses  in  repair  on  the  demised  premises.  To  the 
first  breach  the  defendant  pleaded  that  the  New  Castle  and 
Wilmington  Railroad  Company,  under  color  of  the  author- 
ity of  their  charter,  and  with  the  assent  and  concurrence 
of  the  plaintiffs,  had  located  and  constructed  their  railroad 
over  and  through  the  demised  premises,  thereby  changing, 
altering,  and  breaking  up  the  fences  and  hedges  aforesaid, 
on  the  lines  inclosing  the  same;  and  as  to  the  second 
breach,  that  he  had,  during  the  term,  kept  the  buildings, 
houses,  outhouses,  and  other  tenements  on  the  demised 
premises,  in  good  order  and  repair,  using  materials  of  good 
quality  and  fitting  therefor.  To  these  pleas  the  plaintiff 
entered  a  general  demurrer. 

Rodney,  for  the  defendant,  objected,  that  the  first  error 
in  the  pleadings  occurred  in   the   declaration,  because  it 


452  SUPERIOR  COURT. 

took  no  notice  of  the  proviso,  or  qualification  contained  in 
the  covenant  and  lease,  in  regard  to  the  repairs  upon  the 
roofs  of  the  buildings  on  the  premises;  but  was  upon  an 
absolute  and  unconditional  covenant  to  repair,  without 
any  qualification  whatever,  and  without  negativing  the 
exception  in  that  respect,  as  it  should  have  done,  by  aver- 
ring that  the  committee  of  trustees  were  of  opinion  that 
the  old  roofs  could  be  further  repaired  to  advantage,  and 
that  new  ones  were  not  necessary. 

But  the  Court  held  that  no  such  averment  was  necessary 
in  the  narr;  because  if  the  committee  of  trustees  were  of 
a  contrary  opinion,  it  was  a  matter  of  defence  to  be  alleged 
on  the  other  side,  and  not  necessary  to  be  negatived,  or 
denied  in  advance  by  the  plaintiffs  in  their  declaration; 
for  the  exception  was  by  way  of  proviso,  or  a  distinct  con- 
dition following  the  covenant  to  repair,  and  was  not  incor- 
porated in  it.  There  were  certain  well-settled  principles 
of  pleading  which  applied  in  such  cases;  the  first  of  which 
was,  that  every  written  instrument,  if  not  set  forth  in  haic 
verba,  must  be  stated  according  to  its  legal  effect  and  ope- 
ration, and  the  perfection  of  pleading  is  said  to  consist  in 
combining  brevity  with  the  requisite  certainty  and  pre- 
cision ;  and  the  second  is,  that  matter  which  should  more 
properly  come  from  the  other  side,  need  not  be  alleged  or 
denied  by  way  of  anticipation.  There  is  also  another  rule, 
which  distinguishes,  in  this  respect,  between  an  exception, 
condition,  or  proviso  which  qualifies  the  liability  of  the 
party,  or  exempts  him  from  responsibility  altogether,  when 
it  occurs  in  the  same  general  clause  of  a  statute,  or  in  the 
same  general  clause  of  a  written  instrument,  or  covenant, 
and  is  so  blended  and  identified  with  it,  that  it  cannot  be 
separated  from  it,  or  read  without  noting  the  qualification, 
or  exception,  and  when  it  occurs  in  a  subsequent  and  dis- 
tinct clause,  or  proviso  of  the  statute,  or  instrument.  In 
the  former  case,  the  party  relying  on  such  genera,l  clause, 
with  the  exception  or  qualification  so  embodied  in  it,  must 
in   pleading  state  it  with   the  exception,  or  qualification, 


CLEAVER  v.  OGLE.  453 

and  negative,  or  deny  that  the  opposite  party  falls  within 
it;  but  in  the  latter  case  this  is  not  necessary,  for  he  need 
not  notice  the  exception,  but  may  leave  it  to  the  other  side, 
if  he  relies  upon  it  as  a  defeasance,  or  a  defence  to  the 
action,  to  plead  it  and  show  that  his  case  is  embraced  in 
the  exception.  The  present  case  falls  within  the  latter 
branch  of  this  rule,  and  the  objection  of  the  defendant, 
therefore,  is  not  well  taken. 

T.  F.  Bayard,  for  plaintiffs. 

Rodney,  for  defendant. 


Joseph  Cleaver  v.  Thomas  M.  Ogle,  Sheriff. 

A  mere  possibility  that  a  witness  may  gain  or  lose  by  the  result  of  the 
suit,  will  not  affect  his  competency. 

A  sale  of  corn  in  the  ear  in  the  seller's  barn,  afterwards  to  be  got  off  ready 
for  market  by  him,  and  to  be  taken  away  by  the  purchaser  as  soon  as 
he  could  get  ready  to  receive  it,  transfers  the  property  to  the  purchaser 
from  the  time  of  the  sale,  and  it  cannot  be  taken  on  an  execution  against 
the  seller  levied  before  the  delivery. 

Replevin  for  a  thousand  bushels  of  Indian  corn.  De- 
fendant pleaded  property  in  Andrew  Biddle,  and  that  lie 
levied  on  it  by  virtue  of  nji.fa.  in  his  hands  against  him. 
The  corn  had  been  grown  by  Biddle  and  was  in  his  barn 
at  the  time  of  the  levy  by  the  sheriff;  he  had  before  that, 
however,  sold  it  to  the  plaintiff,  to  be  taken  away  by  him 
in  a  short  time.  It  was  then  in  the  ear,  but  had  afterwards 
been  beaten  off  by  Biddle,  prior  to  the  sheriff's  levy.  After 
the  sale  and  before  the  levy,  he  had  given  orders  in  favor 
of  a  third  person  on  the  plaintiff"  for  the  price  of  the  corn, 
which  he  had  accepted,  and  was  also  in  debt  to  him  on  ac- 
count.    The  plaintiff  was  to  send  his  vessel  and   take  it 


454  SUPERIOR  COURT. 

away  in  a  few  days,  or  as  soon  as  he  could  get  his  vessel 
there. 

The  defendant  then  called  a  witness,  who  was  objected 
to  on  the  other  side,  upon  the  ground  that  he  was  surety 
for  Biddle  in  another  judgment  against  him,  which  bound 
his  land,  and  as  he  was  in  embarrassed  circumstances,  the 
witness  had  an  interest  to  have  the  corn  applied  to  the 
payment  of  the  present  judgment,  execution,  and  levy, 
which  was  a  younger  judgment  than  the  other,  and  the 
probability  was  that  the  land  would  not  sell  for  enough  to 
satisfy  both  judgments,  and  the  witness  might  therefore, 
without  this  application,  have  something  to  pay  on  the  lat- 
ter judgment  in  which  he  was  surety. 

But  the  Court  overruled  the  objection,  because  the  in- 
terest of  the  witness  on  that  ground,  whatever  it  might 
turn  out  in  the  sequel  to  be,  was  too  remote  and  contin- 
gent in  its  nature  to  exclude  his  testimony. 

The  defendant  then  proved  by  him,  that  he  had  inquired 
of  the  plaintiff  if  he  had  bought  the  corn  before  the  levy, 
and  he  replied  that  he  had  agreed  to  take  it  at  sixty  cents 
per  bushel,  but  after  going  out  to  look  at  it,  he  found  it 
rather  damp,  and  that  he  was  then  to  take  it  and  freight  it 
to  Philadelphia,  and  whatever  it  brought  over  that  price, 
he  was  to  account  for  to  Mr.  Biddle. 

lire  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  That  it  was 
incumbent  upon  the  plaintiff  to  prove  that  the  corn  was 
his,  and  that  it  had  been  unlawfully  taken  or  detained 
from  him  as  his  property  by  the  defendant,  and  the  only 
question  to  be  determined  in  the  case  was,  whether  there 
had  been  an  actual  and  bona  fide  sale  of  it  by  Biddle  to  him 
before  the  levy  of  the  sheriff.  In  every  sale  of  personal 
property,  the  law  required  that  a  valuable  consideration 
should  be  paid  or  secured,  or  promised  to  be  paid  for  it, 
and  that  it  should  be  delivered  into  the  possession  of  the 
pun-baser  as  soon  as  it  conveniently  could  be  done  after 
the  sale  It  was  not  necessary,  however,  that  the  property 
should   be  actually  paid   for  at  the  time  of  the  purchase; 


BUDD  v.  THE  UNION  BANK.  455 

nor  was  it  necessary  that  the  actual  delivery  of  it  should 
be  immediate  and  accompany  the  sale  of  it.  In  a  sale  of 
property  to  be  delivered  thereafter,  it  was  sufficient,  if  it 
was  delivered  within  the  time  mentioned ;  if  no  time  be 
mentioned,  and  an  immediate  delivery  was  inconvenient 
or  impracticable,  as  where  corn  is  sold  in  the  ear  and  is 
afterwards  to  be  got  off  and  ready  for  market  by  the  seller, 
or  is  to  be  delivered  as  soon  as  the  purchaser  shall  be  pre- 
pared to  receive  or  ship  it,  it  was  sufficient,  and  would 
transfer  the  property  in  the  thing  sold  from  the  vendor  to 
the  purchaser.  But  in  such  a  case,  the  sale  should  be  an 
actual  and  positive  sale,  and  such  as  would  transfer  the 
right  of  property  from  the  former  to  the  latter  in  good 
faith,  or  it  would  be  invalid. 

The  plaintiff  had  a  verdict. 

Booth,  for  plaintiff. 

Gordon,  for  defendant. 


William  A.  Budd,  Thomas  Young,  Samuel  McCaulley, 
and  Lewis  P.  Bush,  v.  The  Union  Bank  of  Delaware, 
for  the  use  of  Benjamin  A.  Janvier. 

No  rule  can  be  laid  to  show  cause  wherefore  a  judgment  should  not  be 
satisfied,  or  issue  granted  to  ascertain  the  amount  due  upon  it.  except 
between  the  parties  to  the  judgment. 

This  was  a  rule  to  show  cause  wherefore  the  entry  of 
the  issue  in  this  case  should  not  be  corrected  and  reformed, 
so  as  to  make  the  parties  to  the  original  judgment  parties 
to  the  issue. 

The  Union  Bank  of  Delaware  had  recovered  a  judg- 
ment against  Solomon  Prettyman,  at  the  May  Term  of  the 
Court,  1*49,  on  which  an  execution  had  been  issued,  to 
which  the  sheriff  returned,  at  the  ensuing  term,  "  Levied 


456  SUPERIOR  COURT. 

on  the  goods  of  the  defendant,  and  stayed  by  order  of  the 
plaintiffs'  attorney."  Afterwards  at  the  November  Term, 
1850,  William  A.  Budd,  Thomas  Young,  Samuel  McCaul- 
ley,  and  Lewis  P.  Bush,  recovered  a  judgment  against 
Prettyman,  on  which  they  sued  out  an  execution  to  No- 
vember Term,  1851,  to  which  the  sheriff  returned,  "  Levied 
on  goods  and  sold,  and  the  proceeds  subject  to  prior  execu- 
tions," and  brought  the  money  into  Court,  under  the  pro- 
visions of  the  statute,  subject  to  the  order  of  the  Court, 
the  plaintiff  in  the  first-mentioned  judgment  being  the 
contestant  for  it.  The  plaintiffs  in  the  latter  judgment 
contending  that  the  former  had  been  satisfied,  had  ob- 
tained a  rule  of  Court  on  the  plaintiff  in  that  judgment  to 
ascertain  what  sum,  if  any,  was  due  upon  it,  and  an  issue 
directed  to  be  tried  by  a  jury,  at  the  bar  of  the  Court,  to 
determine  the  fact.  The  case  in  which  the  rule  was  ob- 
tained and  laid,  was  docketed  upon  the  record  of  the 
Court  as  "  William  A.  Budd,  Thomas  Young,  Samuel 
McCaulley,  and  Lewis  P.  Bush,  v.  The  Union  Bank  of 
Delaware,  for  the  use  of  Benjamin  A.  Janvier,"  and  the 
issue  directed  to  be  tried  by  a  jury  was  entered  in  the 
case  as  it  thus  stood  upon  the  docket ;  and  it  was  to  cor- 
rect and  reform  this  entry  of  the  issue,  by  making  the 
parties  to  the  former  judgment  parties  to  the  issue,  that 
the  present  rule  was  laid. 

James  A.  Bayard,  for  the  plaintiff  in  the  rule :  There 
was  no  such  case  on  the  records  of  this  Court  as  William 
A.  Budd,  Thomas  Young  and  others  versus  The  Union 
Bank  of  Delaware,  for  the  use  of  Benjamin  A.  Janvier, 
and  an  issue  could  not  be  ordered  in  a  case  not  in  this 
Court.  His  objection  was,  as  the  issue  now  stood  docketed 
on  the  rule  obtained,  and  which  was  drawn  up  and  en- 
tered by  the  counsel  on  the  other  side  without  his  know- 
ledge or  consent,  Prettyman,  the  defendant  in  the  two 
judgments,  but  who  was  no  party  to  the  rule  and  issue  as 
it  stood  entered  and  docketed,  would  be  a  competent  wit- 
ness to  prove  that  the  former  judgment  due  the  bank  was 


BUDD  v.  THE  UNION  BANK.  457 

paid,  and  we  should  have  the  unprecedented  anomaly 
thus  presented,  not  only  of  a  judgment  proved  to  be  paid 
before  a  court  and  jury  by  the  defendant  himself  in  the 
judgment,  but  a  judgment  ordered  to  be  entered  satisfied 
on  the  finding  of  a  jury  upon  such  evidence,  and  also  at 
the  instance  of  persons  who  are  no  parties  to  the  judgment, 
but  are  entire  strangers  to  it.  The  Court  have  no  juris- 
diction of  such  a  case,  and  could  not  have  known  of  the 
entry  of  such  a  rule,  and  must  reform  it,  and  direct  the 
issue  to  be  entered  between  the  parties  to  the  judgment 
itself. 

D.  M.  Bates,  for  the  defendants  in  the  rule :  The  objec- 
tion to  the  rule  as  laid,  was  not  a  valid  objection,  because 
the  only  question  involved  in  the  case  was  as  to  the  ap- 
plication of  the  money  brought  into  Court  by  the  sheriff, 
arising  from  the  sale  of  the  goods  of  Prettyman  on  the 
judgment  of  Budd  and  others,  and  if  it  should  be  found  to 
be  applicable  to  the  execution  on  that  judgment,  the  judg- 
ment in  favor  of  the  bank  would  still  stand  and  remain  as 
a  valid  and  subsisting  judgment  on  the  record;  because 
no  one  supposed  that  the  result  of  this  collateral  proceed- 
ing could  operate,  or  have  the  effect  in  any  way,  to  extin- 
guish, or  satisfy  that  judgment.  For  the  issue  as  it  now 
stood,  and  which  it  was  entirely  competent  for  the  Court 
to  direct,  when  the  rule  was  granted,  to  be  entered  in 
whatever  form  it  deemed  best  to  meet  the  particular  ob- 
ject in  view,  could  have  no  such  operation  or  effect ;  and 
therefore  the  objection  that  Prettyman  himself  might  be- 
come a  witness  to  prove  the  payment  of  the  bank  judg- 
ment, in  this  aspect  of  the  case,  was  of  no  importance 
whatever. 

By  the  Court :  The  issue  has  been  improperly  entered, 
and  this  rule  must  be  made  absolute.  No  rule  can  be 
laid  to  show  cause  wherefore  a  judgment  should  not  be 
satisfied,  or  issue  granted  to  ascertain  the  amount  due 
upon  it,  except  between  the  parties  to  the  judgment.  The 
issue  must  therefore  be  corrected  and  reformed. 

30 


458  SUPERIOR  COURT. 


Peter  A.  Browne,  Executor  of  Samuel  B.  Davis,  de- 
ceased, v.  William  H.  Rogers,  named  executor  of  said 
deceased. 

The  costs  of  the  executor  in  defending  the  validity  of  the  will  allowed 
him  out  of  the  estate,  although  the  will  was  set  aside. 

This  was  an  appeal  from  an  order  of  the  Register  of 
Wills  of  New  Castle  County,  in  the  matter  of  the  will  of 
Samuel  B.  Davis,  deceased,  directing  a  certain  portion  of 
the  costs  of  the  proceedings  on  an  issue  awarded  by  him 
to  test  the  validity  of  it,  to  be  paid  out  of  the  estate  of  the 
deceased.  The  respondent  had  been  nominated  and  ap- 
pointed executor  and  trustee  by  the  will,  which,  after  a 
protracted  and  expensive  litigation  before  the  register  and 
upon  the  issue  of  devisavit  vel  non  ordered  by  him,  had  been 
set  aside  by  him,  and  upon  which  he  made  the  order  ap- 
pealed from,  that  the  costs  of  the  proceeding  up  to  the 
time  of  setting  aside  the  will,  should  be  paid  as  above 
stated. 

D.  M.  Bates,  for  the  appellant,  relied  upon  the  general 
principle  and  rule  of  law,  that  the  party  failing  must  pay 
the  costs.  3  Danl.  Ch.  Prac.  1520;  Beams  on  Costs,  12  Law 
Libr.  163  ;  1  W?ns.  on  Exrs.  310. 

William  II.  Rogers,  for  respondent :  It  had  been  the  uni- 
form practice  in  this  State  to  allow  the  executor  in  such 
cases  his  necessary  costs  and  expenses  in  defending  the 
validity  of  the  will,  to  be  paid  out  of  the  estate.  It  was 
the  duty  of  the  executor  to  defend  the  will  when  im- 
peached, until  it  was  determined  by  competent  authority 
not  to  be  the  last  will  and  testament  of  the  deceased,  and 
it  was  but  right  that  the  estate  should  defray  the  legal  costs 
and  the  reasonable  and  necessary  expenses  incurred  by  him 
in  the  discharge  of  this  duty;  and  such  had  always  been 
the  practice  and  ruling  in  this  State.  Hearn  v.  Boss,  4 
Harr.  104. 


WOOLMAN  &  SULLIVAN  v.  ZEBLEY  &  MORRIS.    459 

D.  M.  Bates :  The  present  case  differed  from  the  one 
cited.  There  the  will  was  sustained,  and  the  result  justi- 
fied the  executor  in  the  expenses  incurred  in  vindicating 
the  validity  of  it.  But  in  this  case  the  result  was  other- 
wise ;  for  the  will  was  set  aside,  and  the  executor  conse- 
quently had  not  the  justification  and  the  same  equitable 
claim  upon  the  estate  to  be  indemnified  out  of  it,  for  his 
necessary  expenses  in  defending  it.  The  question  had  fre- 
quently been  before  our  courts,  but  the  practice  would  be 
found  to  be,  that  in  every  case  where  the  costs  had  been 
allowed  out  of  the  estate  to  the  executor,  the  will  had  been 
sustained. 

By  the  Court :  In  the  case  of  Hearn  v.  Ross,  the  Court 
after  argument  sustained  the  allowance  of  the  register  for 
the  counsel  fees  paid  by  the  executor  in  defending  the 
will,  and  we  only  conform  to  the  usual  practice  in  such 
cases  in  sustaining  the  allowance  of  the  register  in  the  pre- 
sent instance.  The  order  appealed  from  is  therefore  af- 
firmed. 


Daniel  "Woolman  and  John  W.  Sullivan,  trading  as 
"Woolman  &  Sullivan,  v.  Jonathan  Zebley  and  Daniel 
Morris,  trading  as  Zebley  &  Morris. 

Leave  to  amend  a  replication  will  not  be  granted  after  the  plaintiff  has 
closed  his  testimony,  and  the  defendant  has  proceeded  to  examine  wit- 
nesses in  support  of  his  plea,  to  enable  the  plaintiff  to  take  advantage 
of  such  proof,  by  the  amendment  asked  for. 

Declaration  in  assumpsit.  Plea,  release.  Replication 
that  the  release  was  obtained  by  fraud  and^  misrepresenta- 
tion. After  the  jury  had  been  sworn  and  the  plaintiffs  had 
closed  their  testimony,  and  the  defendants  were  proceeding 
with  the  examination  of  their  witnesses,  and  had  proved 
the  execution  of  the  release  from  the  plaintiffs  to  the  de- 


460  SUPEKIOE  COURT. 

fendante,  and  its  subsequent  loss,  but  were  unable  to  state 
from  recollection  the  terms  and  conditions  of  it,  the  counsel 
for  the  plaintiffs  asked  the  leave  of  the  Court  to  withdraw 
and  amend  their  replication  to  the  plea  of  release,  so  as 
to  traverse  the  plea  generally,  without  replying  per  frau- 
dem,  &c. 

By  the  Court :  The  application  to  amend  the  replication 
at  this  stage  of  the  trial  comes  too  late,  after  the  plaintiffs 
have  closed  their  testimony  and  the  defendants  have  pro- 
ceeded to  offer  evidence  on  the  very  point  which  the  plain- 
tiffs now  propose  to  take  advantage  of  by  an  amendment 
of  their  replication. 

Patterson,  for  the  plaintiffs. 

Gordon,  for  the  defendants. 


Samuel  W.  Davis  v.  William  M.  Bonnewell. 

If  a  machinist  undertakes  to  construct  a  machine  for  the  inventor,  accord- 
ing to  a  model  furnished  by  him,  and  to  supply  the  materials  for  the 
purpose,  and  he  constructs  it  so  unskilfully  as  to  be  of  no  use  for  the 
purpose  for  which  it  was  invented,  he  can  recover  no  compensation  for 
his  work  and  labor,  or  the  materials  supplied  by  him.  But  it  is  other- 
wise, if  the  failure  be  owing  to  defects  inherent  in  the  model. 

Tnis  was  an  action  of  assumpsit,  with  the  usual  pleas,  for 
work,  and  labor,  and  materials  furnished  by  the  plaintiff 
in  the  construction  of  a  machine  for  cutting  standing  corn, 
invented  by  the  defendant.  The  defendant,  who  resided 
at  Camden,  had  there  exhibited  a  model  of  the  machine, 
then  recently  invented  by  him,  to  A.  II.  Harvey,  a  ma- 
chinist of  Wilmington,  and  after  some  conversation  be- 
tween them  in  regard  to  the  expense  of  making  such  a 


DAVIS  v.  BONNEWELL.  461 

machine,  requested  him  to  construct  one  according  to  the 
model  for  him,  which  Harvey  consented  to  do,  or  to  have 
done  for  him ;  but  no  special  contract  was  entered  into, 
and  no  price  was  agreed  upon  between  them  for  the  work. 
Harvey,  as  the  defendant  supposed,  was  to  find  such  ma- 
terials as  might  be  necessary,  and  was  to  construct  the 
machine,  or  was  to  have  it  done  at  his  establishment  in 
Wilmington,  and  was  to  be  paid  for  it  by  the  defendant 
when  it  was  finished.  Harvey,  however,  on  receiving  the 
model  after  his  return  to  Wilmington,  not  caring  to  under- 
take the  work  himself,  spoke  to  Davis,  the  plaintiff,  another 
machinist,  to  make  the  machine  and  find  the  materials, 
and  passed  the  work  entirely  over  to  him,  but  without 
informing  the  defendant  that  he  had  done  so.  On  the 
defendant's  visiting  Harvey  afterwards,  to  ascertain  what 
progress  had  been  made  in  the  construction  of  the  machine, 
he  took  him  to  the  shop  of  the  plaintiff,  and,  after  intro- 
ducing him  to  the  latter,  exhibited  the  work  to  him  in  his 
presence,  and  then  left  them,  and  afterwards  paid  no 
further  attention  to  the  matter,  but  still  without  informing 
the  defendant  that  he  had  delivered  the  work  entirely  over 
to  the  plaintiff.  The  defendant  then  directed  the  plaintiff 
to  make  some  alterations  in  the  plan  of  the  machine;  and 
in  all  his  subsequent  visits  to  Wilmington,  to  see  about  the 
work,  he  always  called  at  the  shop  of  the  plaintiff,  and 
gave  him  directions  in  regard  to  it,  and  conferred  with 
him  in  relation  to  it;  and  during  the  progress  of  it,  vari- 
ous modifications  and  alterations  were  suggested  by  the 
plaintiff  as  improvements  in  the  machine,  and  were  acqui- 
esced in  by  the  defendant.  After  considerable  delay,  the 
work  was  finally  completed  by  the  plaintiff,  and  the  ma- 
chine was  sent  by  him  to  the  defendant,  at  Camden  ;  but 
proved,  upon  a  full  and  practical  test  of  it,  to  be  of  no 
value  for  the  purpose  for  which  it  was  invented.  It  varied 
in  several  important  particulars  from  the  model  furnished 
for  its  construction,  and  among  other  defects  was  much 
heavier  than  was  necessary,  or  the  design  of  the  defendant 
required,  and  when  put  in  motion  would  neither  operate 


462  SUPEEIOE  COURT. 

successfully,  nor  hold  together  more  than  a  few  minutes. 
It  was  also  proved,  that  the  defendant  afterwards  con- 
structed a  machine  himself,  according  to  the  model  fur- 
nished the  plaintiff,  which  was  much  lighter,  and  which, 
on  actual  experiment,  was  found  to  answer  the  objects  of 
its  invention,  and  to  operate  very  well.  The  defendant, 
without  returning,  or  offering  to  return,  the  machine  sent 
to  him  by  the  plaintiff,  refused  to  pay  for  it;  and  this  suit 
was  brought  to  recover  for  the  work  and  labor  bestowed 
upon  it,  and  the  value  of  the  materials  used  in  the  con- 
struction of  it. 

Bradford,  for  the  plaintiff,  contended  that  the  defendant 
was  liable  to  the  plaintiff  for  the  work  done  upon  the 
machine  with  his  knowledge  and  consent,  and  that  the 
facts  proved  would  sustain  the  action,  although  the  defence 
would  be  that  the  plaintiff  was  employed  by  and  acted  as 
the  agent  of  Harvey  solely  in  the  construction  of  the  ma- 
chine, and  not  by  the  employment  or  direction  of  the  de- 
fendant himself.  But  his  repeated  visits  to  the  shop  of  the 
plaintiff,  and  interviews  and  consultations  with  him  during 
the  progress  of  his  labor  upon  it,  and  the  changes  and 
modifications  in  the  plan  of  it,  as  originated  and  suggested 
by  the  plaintiff,  with  a  view  to  render  it  more  efficient  and 
complete,  and  to  which  the  defendant  freely  assented  on 
his  part,  taken  in  connection  with  his  knowledge  of  the 
fact  that  the  plaintiff  not  only  had  the  principal,  but  the 
entire  and  exclusive  management  of  its  construction,  and 
that  Harvey,  after  his  first  visit  to  Wilmington,  had  nothing 
further  to  do  with  it,  and  was  never  afterwards  seen  or 
consulted  by  him  in  regard  to  it, — all  concurred  to  prove, 
or  at  least  to  raise  a  strong  presumption  that  the  defendant 
must  have  been  aware  that  Harvey  had  no  further  connec- 
tion with  the  business,  but  that  the  plaintiff  had  been,  from 
the  first,  substituted  in  his  place  to  do  the  work  for  the 
defendant,  and  that  he  fully  approved  of  and  assented  to 
it;  and  if  such  was  the  ease,  then  the  defendant  was  clearly 
liable  to  the  plaintiff  in  the  present  action.     As  to  the 


DAVIS  v.  BONNEWELL.  463 

alleged  failure  of  the  machine,  after  its  construction,  if  the 
jury  should  not  be  satisfied  from  the  evidence  that  it  arose 
from  radical  defects  inherent  in  the  invention,  or  model 
itself,  but  was  owing  to  the  alterations  and  variations  from 
the  plan  suggested  and  introduced  by  the  plaintiff,  it  fur- 
nished no  defence  to  the  action  for  his  work  and  labor 
upon  it,  and  the  materials  supplied  by  him  for  it;  because 
every  one  of  these  changes  were  approved  and  assented  to 
by  the  defendant,  before  they  were  introduced  in  the  con- 
struction of  the  machine.  But  the  defendant,  in  addition 
to  this,  had  not  only  neglected  and  omitted,  on  receiving 
it  and  discovering  its  failure  to  operate  as  designed,  to 
notify  the  plaintiff  of  that  failure,  which  possibly  he  might 
easily  have  remedied,  but  he  had  also  entirely  neglected 
to  return  it  upon  the  hands  of  the  plaintiff,  or  to  offer  to 
return  it  to  him;  on  the  contrary,  he  still  retained  it,  with 
all  the  materials  in  it  furnished  by  the  plaintiff  at  his  own 
cost  and  expense,  whilst  he  r'efused  to  pay  anything  for  it. 

Fisher,  for  the  defendant,  in  the  first  place,  argued  that, 
on  the  facts  proved,  the  plaintiff  had  no  right  to  maintain 
this  action  against  the  defendant;  and  his  only  remedy  was 
against  Harvey,  who  employed  him  to  do  the  work  without 
the  knowledge  of  the  defendant,  and  who  supposed  all  the 
time  it  was  in  progress,  that  the  former  was  having  it  done 
for  him  by  the  plaintiff,  according  to  the  original  under- 
standing between  them  in  regard  to  it.  That  he  knew 
Harvey  to  be  a  skilful  machinist,  and  reposed  confidence 
in  him  for  that  reason;  but  he  had  no  previous  knowledge 
of  the  plaintiff,  and  would,  therefore,  have  never  thought 
of  employing  him  for  any  such  purpose,  and  never  con- 
sidered him  in  his  employ  at  any  time  during  the  progress 
of  his  work  upon  the  machine.  The  bill  for  it  was  an 
exorbitant  one,  and  the  machine  had  proved  on  trial  to  be 
a  total  failure,  and  was  utterly  worthless.  Nor  was  this 
owing,  in  any  degree,  to  detects  inherent  in  the  model,  as 
had  been  clearly  proved ;  but  it  was  entirely  attributable 
to  the  imperfect  manner  in  which  it  had  been  constructed, 


464  SUPERIOR  COURT. 

and  the  unwise  and  fatal  alteration  which  he  had  advised 
the  defendant  to  consent  to  allow  him  to  introduce  into 
the  plan  of  it.  Its  failure,  therefore,  to  answer  the  purpose 
for  which  it  was  designed,  was  entirely  owing  to  the  in- 
competency and  misconduct  of  the  plaintiff  in  his  special 
line  of  business;  and  as  no  benefit  whatever  had  been 
derived  by  the  defendant  from  it,  the  plaintiff  was  not  en- 
titled to  recover  any  compensation  for  it.  Com.  on  Contr. 
227;  2  Stark.  Ev.  642;  1  Stark.  Hep.  86;  Hall  v.  Cannon,  4 
Barr.  360. 

Bradford,  for  the  plaintiff,  replied. 

The  Court,  Houston,  J.,  charged  the  jury :  That  if  the  con- 
tract or  understanding  between  the  defendant  and  Harvey 
was,  that  the  latter  should  construct  the  machine  or  was 
to  have  it  constructed  for  the  defendant,  the  plaintiff  could 
not  maintain  the  action,  unless  it  appeared  from  the  evi- 
dence, to  their  satisfaction,  that  the  work  was  passed  over 
by  him  to  the  plaintiff,  to  be  entirely  devised,  superinten- 
ded, and  performed  by  him,  and  not  by  himself,  or  in  his 
establishment,  with  the  knowledge  and  consent  of  the  de- 
fendant ;  for  in  such  a  case  the  plaintiff  might  recover,  if 
the  jury  were  satisfied  from  the  evidence  that  the  defen- 
dant, with  knowledge  of  the  substitution  of  the  plaintiff  by 
Harvey  in  his  place,  assented  to  it,  and  afterwards  looked 
to  him  and  not  to  Harvey,  as  the  machinist  who  was  to  do 
the  work  for  him.  But  unless  this  appeared,  the  plaintiff 
could  not  maintain  the  action,  and  his  only  redress  would 
be  against  Harvey  who  employed  him  f.o  do  it. 

As  to  the  manner  in  which  the  work  had  been  done,  it 
seemed  that  this  was  a  machine  which  had  recently  been 
invented  by  the  defendant,  and  the  object  was  to  have  a 
trial  machine  constructed  according  to  a  model  submitted 
by  him;  and  if  the  machine  was  skilfully  made  according 
to  that  model,  or  according  to  variations  or  modifications 
introduced  into  the  plan  of  it  with  the  approbation  and 
concurrence  of  the  defendant,  and  it  failed  of  its  object  in 


CEAWFORD  v.  ELLIOTT.  465 

consequence  of  deficiencies  or  defects  inherent  in  the  model 
itself,  or  in  the  plan  of  it  as  modified  with  the  assent  of  the 
defendant,  the  plaintiff  would  be  entitled  to  recover  a  fair 
and  reasonable  compensation  for  his  labor  and  the  mate- 
rials furnished  by  him  in  constructing  it,  to  be  determined 
by  the  jury;  provided  they  should  be  satisfied  that  he  was 
entitled  to  maintain  the  action  on  the  point  first  adverted 
to  and  stated  by  him.  If,  on  the  contrary,  it  should  appear 
from  the  evidence  that  the  deficiency  was  not  in  the  model, 
but  was  in  the  unskilful  and  defective  manner  in  which  it 
was  constructed  by  the  plaintiff,  and  in  consequence  of  that 
fact  it  was  of  no  use  or  value  to  the  defendant  as  a  machine 
for  cutting  corn,  the  plaintiff  was  not  entitled  to  recover 
in  this  action. 

Verdict  for  defendant. 


Elizabeth  Crawford  v.  James  Elliott,  Garnishee  of 
"William  B.  Crawford. 

The  interest  or  share  of  an  heir-at-law  in  a  recognizance  in  the  Orphans' 
Court  is  liable  to  attachment. 

If  a  person  leave  or  disappear,  the  presumption  id  favor  of  life  continues 
until  a  period  of  seven  years  has  elapsed  without  any  tidings  or  intelli- 
gence of  him  ;  but  after  that  the  rule  is  reversed,  and  the  law  presumes 
his  death,  unless  the  contrary  be  shown. 

This  was  a  ji.  fa.  attachment  case,  at  the  suit  of  Eliza- 
beth Crawford  against  William  B.  Crawford,  laid  in  the 
hands  of  James  Elliott,  garnishee.     Plea  nulla  bona. 

The  debt  attached  was  the  sum  of  $200,  due  the  defen- 
dant in  the  writ  from  Elliott,  the  garnishee,  on  a  recog- 
nizance in  the  Orphans'  Court,  entered  into  by  him  on  the 
purchase  of  a  portion  of  the  intestate  real  estate  of  his 
father,  James  Crawford,  deceased,  who  died  March  3d, 
1854;  the  recognizance  was  entered  into  September  2d, 
185G,  and  the  attachment  was  issued  May  lGth,  1856. 


466  SUPEEIOR  COURT. 

It  was  in  proof  that  "William  B.  Crawford  had  left  the 
State  in  1842  or  1843,  and  had  emigrated  first  to  Ohio, 
and  afterwards  to  Missouri,  whence  he  removed  in  1847 
to  California,  since  which  time  no  tidings  or  intelligence 
had  been  had  of  him  by  any  of  his  family  or  friends  in  this 
State. 

T.  F.  Bayard,  for  the  garnishee,  took  the  ground,  first, 
that  an  attachment  would  not  lie  for  the  interest  of  an  heir 
in  a  recognizance  in  the  Orphans'  Court.  State  v.  Huxley, 
4  Harr.  344.  The  condition  of  the  recognizance,  together 
with  the  remedy,  which  is  by  scire  facias  in  the  name  of  the 
State,  and  which  can  alone  be  sued  out  and  prosecuted  in 
the  name  of  the  State,  and  not  in  the  name  of  the  heir,  as 
for  a  debt  directly  due  to  him,  forbids  in  such  a  case  the 
process  of  attachment  by  a  creditor,  because  it  was  incon- 
sistent with  that  remedy.  But  there  was  another  and  per- 
haps a  better  ground  of  objection  to  the  recovery  of  the 
plaintiff  in  the  attachment.  It  was  proved  that  William 
B.  Crawford  left  the  State  fourteen  or  fifteen  years  ago, 
and  in  1847  removed  to  California,  since  which  time 
nothing  had  been  heard  of  him,  and  as  the  legal  presump- 
tion of  his  death  arose  after  the  lapse  of  seven  years  with- 
out any  tidings  of  him,  he  must  be  presumed  to  have  been 
dead  at  the  time  of  the  death  of  his  father  in  1854,  and 
was  consequently  not  an  heir  of  his ;  or  at  all  events,  that 
he  was  dead  at  the  time  when  the  recognizance  was  en- 
tered into  and  when  the  attachment  was  issued  ;  and  if  so, 
then  he  had  no  interest  in  the  recognizance,  and  the  attach- 
ment must  fail.  Rev.  Code,  263;  2  Wend.  Black.  Com.  177, 
in  note;  27  Eng.  C.  L.  R.  42. 

Patterson,  for  the  plaintiff,  replied,  and  on  the  question 
of  presumption  as  to  the  death  of  William  B.  Crawford, 
insisted  that  it  was  incumbent  upon  the  defendant,  who  al- 
leged the  death,  to  prove  it,  which  had  not  been  done. 
Wilson  v.  Hodges,  2  East,  312. 


Mcdowell  v.  simpson  &  wife.  467 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  It  is  well  settled 
that  an  attachment  will  lie  against  a  recognizor  in  the  Or- 
phans' Court,  and  it  has  been  repeatedly  so  recognized 
and  ruled  by  the  courts  in  this  State.  It  was  also  a  well- 
settled  rule  of  law  in  England,  prior  to  the  declaration  of 
independence,  and  is  now  recognized  as  a  well-settled 
principle  of  law  in  this  and  other  States  of  the  Union,  that 
if  no  tidings  or  information  be  had  of  a  person  for  a  period 
of  seven  years,  he  is  presumed  to  be  dead,  and  the  burden 
of  proof  is  devolved  upon  the  party  who  alleges  the  con- 
trary, to  prove  that  he  is  living.  The  rule  is,  that  if  a  per- 
son leaves  or  disappears,  the  presumption  in  favor  of  life 
continues  until  a  period  of  seven  years  has  elapsed  without 
any  intelligence  of  him ;  but  after  the  seven  years  have 
elapsed  without  any  tidings  of  him,  the  rule  is  reversed, 
and  the  law  presumes  his  death,  unless  the  contrary  be 
shown.    1  Greenl.  Ev.,  sec.  41. 


Thomas  McDowell,  defendant  below,  Appellant,  v.  Wil- 
liam A.  Simpson  and  Wife,  plaintiffs  below,  Respondents. 

If  the  declaration  in  appeal  from  a  justice  of  the  peace  fails  to  corres- 
pond with  the  transcript  of  the  suit  below,  in  the  names  and  number 
of  the  parties,  the  character  or  right  in  which  they  sue,  or  in  the 
cause  or  form  of  action,  the  proper  mode  to  take  advantage  of  it  is  by 
motion  to  set  it  aside  for  irregularity,  and  not  by  plea  in  abatement,  on 
the  ground  of  variance  between  the  narr  and  the  transcript. 

Appeal  from  a  justice  of  the  peace.  It  appeared  from 
the  transcript  that  the  suit  below  was  instituted  in  the 
name  of  William  A.  Simpson  by  his  wife,  late  Hannah 
A.  Robinson,  against  Thomas  McDowell,  and  that  the 
suit  was  entered  and  docketed  in  this  Court  in  the  same 
manner,  but  the  declaration  was  tiled  in  the  names  of  Wil- 
liam A.  Simpson  and  Hannah  A.  Simpson,  his  wife,  against 


468  SUPERIOK  COURT. 

Thomas  McDowell.  To  this  declaration  the  appellant 
pleaded  in  abatement  the  variance  between  the  suit  as 
instituted  below  and  the  declaration  filed  in  this  Court, 
and  relied  on  the  change  of  the  parties  in  the  pronarr  to 
sustain  the  plea.  The  plea,  however,  on  inspection  did 
not  appear  to  be  either  in  form  or  substance  a  plea  in 
abatement,  but  a  special  plea  in  bar  to  the  action.  Never- 
theless, it  was  considered  and  argued  by  counsel  on  both 
sides,  as  a  plea  in  abatement  merely. 

By  the  Court :  This  is  not  a  plea  in  abatement  either  in 
form  or  substance,  nor  is  the  variance  relied  on  properly 
the  subject-matter  of  a  plea  in  abatement;  nor  can  it  be 
properly  pleaded  in  bar  of  the  action.  It  is  not  a  plea  of 
the  former  description,  because  it  neither  commences  nor 
concludes  as  a  plea  in  abatement,  but  as  a  plea  in  bar,  nor 
does  it  pretend  to  furnish  the  plaintiff  below  with  a  better 
"writ  or  process  for  the  institution  of  his  suit  in  this  Court, 
as  every  plea  in  abatement  of  the  writ  must  do,  and  which 
in  no  case  originating  here  by  appeal,  of  course,  could  be 
done.  Neither  can  it  be  treated  as  a  plea  in  bar,  although 
the  matter  relied  on,  that  is  to  say,  the  inability  of  a  hus- 
band to  sue  by  his  wife,  would  constitute  a  complete  de- 
fence to  the  suit  as  instituted  below,  because  a  plea  in  bar 
is  always  addressed  to  the  declaration,  and  the  declaration 
here  is  all  right  and  in  proper  form. 

"We  consider,  however,  the  variance  in  this  case  between 
the  transcript  of  the  suit  below  and  the  pronarr  filed  in 
this  Court,  though  not  a  proper  ground  for  either  a  plea  in 
abatement  or  a  plea  in  bar,  for  the  reasons  stated,  a  fatal 
objection  to  the  prosecution  of  the  appeal ;  for  had  the 
declaration  conformed  to  the  transcript,  it  would  have 
been  defective  on  general  demurrer,  and  could  not  have 
been  sustained. 

Instead  therefore  of  seeking  to  take  advantage  of  this 
objection  by  a  plea  in  abatement,  or  in  bar,  the  proper 
course  in  our  opinion  for  the  appellant  to  pursue  would  be, 
to  move  to  set  aside  the  declaration  for  irregularity;  be- 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    469 

cause  at  law,  it  is  the  first  requisite  of  a  declaration  that  it 
shall  correspond  with  the  process  on  which  the  action  is 
founded,  first,  in  the  names  of  the  parties,  secondly,  in 
the  number  of  the  parties,  thirdly,  in  the  character  or 
right  in  which  they  sue  or  are  sued,  and  fourthly,  in  the 
cause  and  form  of  the  action ;  and  if  it  fails  to  correspond 
with  the  process  in  any  of  these  particulars,  the  Court 
will,  on  motion,  set  it  aside  for  irregularity.  1  Chit.  PL 
222,  223,  226,  254 ;  1  B.  $  P.  383 ;  1  Saund.  318 ;  5  T.  R. 
722;  Tidd's  Pr.  426;  4  Johns,  485;  8  Cow.  Ill;  1  P.  £ 
Duct's  Pr.  420;  6  T.  R.  158;  8  T.  R.  416 ;  3  Wils.  61. 

Patterson,  for  appellant. 

Gordon,  for  respondent. 


John  Flinn  v.  The  Philadelphia,  "Wilmington,  and  Bal- 
timore Railroad  Company. 

Depositions  taken  on  a  commission  out  of  the  State  may  be  read  in  evi- 
dence, notwithstanding  the  deponent  is  present  in  court  arid  ready  to 
testify  as  a  witness  at  the  trial  of  the  case. 

A  master  is  not  liable  to  his  servant  for  injuries  occasioned  to  him  by  a 
fellow-servant  in  the  course  of  their  common  employment,  provided 
the  latter  is  a  person  of  competent  skill  and  care  ;  because  when  the 
former  engages  in  the  service  of  the  master,  he  undertakes,  as  between 
himself  and  the  master,  to  incur  all  the  ordinary  risks  of  the  service, 
which  includes  the  risks  incurred  from  the  negligence  of  his  fellow- 
servants  in  the  same  employment. 

But  a  drover  travelling  in  a  freight  train  of  a  railroad  company  with  live 
stock,  for  the  purpose  of  taking  care  of  his  live  stock  in  its  transporta- 
tion over  the  road  of  the  company  in  such  train,  although  it  may  be 
the  established  usage  of  the  company  in  such  cases  to  grant  to  the 
owner  of  such  live  stock  a  drover's  ticket,  for  the  purpose  of  accompa- 
nying and  taking  care  of  his  own  stock  in  such  train,  on  his  releasing 
the  company  from  any  risk  or  liability  to  him  for  the  safe  transporta- 
tion of  such  stock,  and  paying  the  rate  of  freight  charged  for  it,  and 
without  his  paying  any  fare  or  compensation  to  the  company  for  his 


470  SUPERIOR  COURT. 

own  passage  in  the  train,  other  than  what  was  included  in  the  amount 
of'  freight  charged  and  paid  on  his  stock,  which  by  the  regulations  and 
practice  of  the  company  was  twenty-five  per  cent,  higher  in  rate,  when 
neither  the  owner  nor  any  agent  of  his  accompanied  the  stock  on  the 
train  for  the  purpose  of  taking  care  of  it,  will  not  constitute  in  law  the 
relation  of  employer  and  employee,  or  of  master  and  servant,  for  the 
occasion,  between  the  company  and  such  drover  and  owner  or  agent  so 
travelling  under  such  circumstances  and  upon  such  terms  and  for  such 
a  purpose,  on  such  a  train.  But,  on  the  contrary,  where  it  is  the  usage 
and  practice  of  the  company,  in  such  cases,  to  issue  to  such  a  person  a 
special  ticket,  called  a  drover's  ticket,  on  his  paying  the  freight  on  his 
stock,  and  executing  a  release  to  the  company  from  any  liability  to  him 
for  the  safety  of  its  transportation,  containing  a  notice  that  the  com. 
pany  will  not  be  responsible  for  the  personal  safety  of  the  holder  of  it 
in  travelling  over  their  road  by  such  train,  and  restricting  his  right 
and  privilege  to  travel  under  it  to  the  freight  trains  of  the  company 
only,  it  was  held  that  a  drover  travelling  on  such  train  with  his  live 
stock,  and  who  had  paid  the  usual  freight  chargeable  under  such  cir- 
cumstances upon  it,  and  released  the  company  from  its  liability  for  the 
safe  transportation  of  it,  whether  he  had  or  had  not  such  a  ticket  as  a 
drover's  ticket  at  the  time,  was  rightfully  and  lawfully  a  passenger  on 
such  freight  train ;  and  although  he  had  paid  no  fare  or  compensation 
for  his  own  passage,  except  such  as  may  have  been  embraced  in  the 
freight  paid  on  his  stock,  under  the  circumstances  and  in  the  Advan- 
tages and  exemptions  accruing  to  the  company  from  his  presence  and 
personal  attention  to  his  own  property  on  the  train,  and  notwithstand- 
ing he  was  travelling,  not  in  a  passenger  train,  but  in  a  freight  train, 
in  which  the  company  never  carried,  or  advertised,  or  held  itself  out  as 
prepared  to  carry  passengers,  or  any  class  of  persons  other  than  dro- 
vers, or  their  agents  travelling  with  their  live  stock,  and  then  only  on 
the  terms  and  conditions  as  to  their  personal  safety  before  stated,  still 
the  company  stood  in  the  relation  and  sustained  the  obligations  of  a 
common  carrier  of  passengers  for  hire  towards  him,  and  were  liable  as 
such  to  him  for  injuries  suffered  by  him  in  a  collision  between  such 
train  and  another  freight  train  of  the  company,  occasioned  by  the 
negligence  or  want  of  skill  on  the  part  of  its  servants  in  charge  of 
either  or  both  of  such  trains  ;  and  that  an  action  on  the  case  would  lie 
against  the  company  by  reason  of  its  liability  as  a  common  carrier  of 
passengers  for  hire  under  such  circumstances,  to  recover  damages  for 
such  injuries;  because  under  such  circumstances  it  would  not  be  the 
case  of  a  special  undertaking  by  the  company  as  ordinary  bailees  for 
hire,  to  carry  the  party  over  its  road  on  an  express  contract  that  the 
company  should  not  be  liable  for  his  personal  safety,  and  if  liable  at  all 
would  only  be  liable  as  such  ordinary  bailees,  or  as  a  private  carrier  for 
compensation  in  another  form  of  action,  that  is  to  say,  in  an  action  of 
assumpsit  based  specifically  on  such  express  contract. 
Common  carriers  consist  of  two  classes, — common  carriers  of  goods,  and 


FLINN  v.  PHIL.  WIL.  &  BALT.  EAILROAD  CO.    471 

common  carriers  of  persons  for  hire ;  and  railroad  companies  being  in- 
corporated by  law  for  the  transportation  of  passengers  as  well  as  pro- 
perty, for  hire,  are  common  carriers  of  both  descriptions.  But  if,  as  a 
general  thing,  they  confine  the  transportation  of  goods  to  their  freight 
trains,  and  the  conveyance  of  passengers  to  their  regular  passenger 
trains,  they  are  common  carriers  of  goods  as  to  the  former,  and  of  pas- 
sengers as  to  the  latter ;  nevertheless,  if  by  the  latter  they  are  in  the 
habit  of  carrying  goods  for  hire,  they  may  become  common  carriers  of 
goods  by  such  trains,  and  if  by  the  former  they  are  in  the  practice  of 
carrying  passengers  for  hire,  such  as  emigrants,  or  drovers,  or  any 
other  class  of  traders  with  their  property,  they  may  also  become  com- 
mon carriers  of  passengers  as  to  such  persons  by  such  trains,  as  well  as 
of  property,  and  may  thus  assume  the  obligations  and  liabilities  of 
common  carriers  indifferently  both  of  persons  and  property  by  such 
trains.  There  is  a  wide  distinction,  however,,  between  the  liability  of 
common  carriers  of  goods  and  a  common  carrier  of  persons  for  hire. 
The  former  are  responsible  for  all  injuries  to  the  goods,  except  such  as 
are  caused  by  the  act  of  God,  or  the  public  enemies,  even  in  the  ab- 
sence of  negligence ;  because  the  former  are  regarded  in  law  in  the 
light  of  insurers  of  the  goods  committed  to  their  charge,  against  all 
other  injuries  ;  whilst  a  common  carrier  of  passengers  is  liable  for  in- 
juries to  the  latter  only  in  case  of  negligence.  But  the  law  in  its  be- 
neficence will  not  allow  of  any  trifling  with  the  lives  or  personal  safety 
of  human  beings,  and  therefore  exacts  great  care,  diligence,  and  skill 
from  those  to  whom,  as  common  carriers,  they  commit  themselves. 
The  degree  of  skill,  care,  and  diligence  required  of  common  carriers  of 
passengers  and  of  their  servants,  and  especially  of  railroad  companies, 
employing  as  they  do  the  powerful  and  dangerous  agency  of  steam,  in 
such  cases,  is  none  the  less,  but  only  the  greater  for  this  reason. 
If  it  was  the  practice  of  the  company  to  receive  and  carry  the  owners  of 
live  stock  with  their  stock  on  its  freight  trains,  upon  their  paying  the 
freight  charged  in  such  cases,  and  the  plaintiff  had  paid  the  freight  on 
his  stock  and  was  travelling  in  such  a  train  in  conformity  with  such 
usage,  then  he  was  there  rightfully  and  lawfully,  and  the  company  and 
its  servants  were  bound  to  exercise  the  same  degree  of  care  and  dili- 
gence in  conveying  him  over  the  road  in  the  train  in  question  as  would 
be  incumbent  by  law  on  common  carriers  of  passengers  for  hire  gene- 
rally ;  and  so  far  as  this  duty  was  concerned,  they  stood  in  a  no  less  re- 
sponsible relation  to  him.  For  it  would  be  inconsistent  with  this  rela- 
tion and  utterly  at  variance  with  the  duty  which  the  law,  on  the  ground 
of  public  policy  and  as  the  conservator  of  the  lives  and  security  of  pas- 
sengers, imposes  on  common  carriers  of  persons,  to  allow  of  an  exemp- 
tion, or  limitation  of  the  responsibility  of  the  company,  such  as  was 
contained  in  the  notice  indorsed  on  its  drovers'  tickets,  for  the  personal 
safety  of  such  passengers  against  injuries  resulting  from  its  own.  or  the 
negligence  of  its  servants.  On  the  contrary,  if  the  injuries  complained 
of  by  the  plaintiff  were  the  result  of  such   negligence,  the  company 


472  SUPERIOR  COURT. 

would  be  liable  for  tbem  notwithstanding  such  notico  and  limitation  of 
its  liability  in  such  cases. 
If,  however,  the  injuries  complained  of  by  the  plaintiff  were  occasioned 
by  bis  own  fault  or  negligence,  or  if  his  own  conduct  or  imprudence  co- 
operated with  the  negligence  or  misconduct  of  the  servants  of  the  com- 
pany to  produce  them,  he  could  not  recover  for  them;  because  he  could 
not  hold  others  liable  for  the  consequences  of  his  own  negligence  or 
misconduct.  But  the  detention  of  the  train  in  which  he  took  passage, 
by  his  request,  beyond  its  usual  time  of  starting,  for  the  purpose  of  ac- 
commodating him  in  getting  his  live  stock  upon  it,  without  which  it 
was  alleged  and  contended  the  collision  in  question  would  not  have 
happened,  was  not  a  circumstance  of  this  nature,  or  such  as  would 
throw  upon  him  the  responsibility  for  the  disaster;  because  the  delay 
in  the  departure  of  the  train  was  not  his  act,  but  the  act  of  the  com- 
pany, or  its  servants,  and  the  original  detention  itself  was  altogether 
immaterial,  if  the  accident  was  the  result  of  subsequent  negligence  on 
the  part  of  the  latter,  at  any  time  after  the  train  started,  as  it  must 
have  been,  if  it  was  the  result  of  negligence  at  all  on  the  part  of  the 
company,  or  its  servants. 

Tins  was  an  action  on  the  case,  tried  before  Wootten 
and  Houston,  Justices  (Gilpin,  Ch.  J.,  not  sitting,  in  conse- 
quence of  his  being  a  stockholder  in  the  company),  brought 
by  John  Flinn  against  the  Philadelphia,  Wilmington,  and 
Baltimore  Railroad  Company,  to  recover  damages  for  per- 
sonal injuries  sustained  by  him  on  the  night  of  the  18th  of 
March,  1856,  in  a  collision  between  two  freight  trains  of 
the  company,  while  he  was  on  his  passage  in  one  of  them 
from  Baltimore  to  Philadelphia. 

The  plaintiff  resided  in  Wilmington,  and  was  a  drover 
and  butcher,  and  was  engaged  in  the  business  of  buying 
and  transporting  sheep  and  cattle  over  the  road  of  the 
company,  from  Baltimore  to  Philadelphia.  In  the  after- 
noon of  the  day  mentioned  he  arrived  at  the  depot  of  the 
company  in  Baltimore,  with  a  flock  of  sheep,  a  short  time 
before  the  hour  of  starting  the  regular  freight  train  for 
Philadelphia,  which  was  live  o'clock;  and  as  he  was  anx- 
ious to  get  on  with  them  that  night  to  Philadelphia,  he 
applied  to  the  proper  officer  of  the  company  for  that  pur- 
pose, and  obtained  his  consent  to  delay  the  departure  of 
the  train  until  he  could  get  his  sheep  on  board.  After  a 
detention  of  half  an  hour  beyond  the  usual  time  of  leav- 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    473 

ing,  the  sheep  were  got  on  board  and  the  train  started, 
the  plaintiff  taking  passage  in  it  with  his  stock  for  Phila- 
delphia, for  which  he  paid  $73  freight,  the  usual  rate 
charged  when  the  owner  accompanied  his  stock  on  the 
trains  of  the  company,  but  without  paying  any  fare  for  his 
own  passage ;  as  it  was  the  custom  and  regulation  of  the 
company  in  such  cases,  to  charge  twenty-live  per  cent,  less 
freight  on  the  transportation  of  live  stock  when  the  owner 
or  his  agent  went  with  them  to  take  care  of  them,  and  in 
consideration  of  this  fact,  to  ask  no  fare  or  additional  pay 
for  the  passage  of  such  owner,  or  his  agent.  It  was  also  a 
further  regulation  and  practice  of  the  company  in  such 
cases,  to  require  of  the  owners  of  live  stock  transported 
over  the  road,  a  release  to  the  company  from  any  liability 
for  the  safety  of  it,  and  to  issue  to  the  owner  a  special 
ticket,  entitled  a  "  drover's  ticket,"  which  stated  on  its 
face  that  it  entitled  the  holder  to  pass  from  and  to  the 
points  indicated  in  it,  only  on  freight  trains,  for  the  pur- 
pose of  taking  care  of  his  stock,  and  on  the  reverse  of  it 
was  contained  a  printed  notice  to  drovers,  that  no  risk 
would  be  assumed  by  the  company,  nor  would  any  damage 
be  allowed,  unless  specially  agreed  to  when  the  stock  was 
taken  for  transportation,  and  an  additional  price  of  twenty- 
five  per  cent,  on  tariff  rates  paid;  one  driver  free  when 
accompanying  the  stock,  to  take  care  of  it  and  paying  the 
regular  price,  but  in  no  case  to  be  allowed  to  ride  in  pas- 
senger trains  on  such  tickets;  and  no  risk  would  be  as- 
sumed by  the  company  for  the  safety  of  such  person.  But 
whether  the  plaintiff  had  executed  such  a  release,  or  had 
such  a  ticket  on  the  occasion  in  question,  did  not  appear 
from  the  evidence.  It  was  proved,  however,  that  he  had 
executed  such  releases  to  the  company  on  previous  oc- 
casions, when  transporting  stock  over  their  road,  and  that 
he  was  aware  of  the  conditions  contained  in  the  notice  to 
drovers,  as  above  stated. 

It  was  not  the  practice,  but  contrary  to  the  instructions 
and  regulations  of  the  companv  to  carry  passengers  ^cne- 

O  I  *  ./loo 

31 


474  SUPERIOR  COURT. 


rally,  or  any  other  persons  than  drovers,  by  their  freight 
trains  from  Baltimore  to  Philadelphia,  and  without  such  a 
ticket,  a  drover  would  have  no  right,  according  to  the  re- 
gulation, to  travel  even  on  a  freight  train  ;  and  even  then, 
he  was  not  considered  by  the  company  a  passenger,  but 
only  as  a  person  on  the  train  to  take  care  of  his  stock,  for 
the,  equal  benefit  of  himself  and  the  company. 

The  train  in  which  the  plaintiff  took  passage  with  his 
stock  was  termed  the  regular  or  through  freight  train 
from  Baltimore  to  Philadelphia,  and  consisted  that  even- 
ing entirely  of  stock  and  freight  cars,  with  the  exception 
of  a  common  storage  car,  in  which  the  men  employed  on 
the  train  sometimes  rode  when  the  weather  was  cold  or 
inclement,  and  an  emigrant  car  attached  to  the  rear  of  the 
train  on  that  occasion,  for  the  purpose  of  being  taken  back 
to  Philadelphia,  and  which  was  the  only  car  in  the  train 
which  had  a  stove  or  fire  in  it  that  evening. 

There  were  two  other  trains  which  left  Baltimore  the 
same  evening  for  Philadelphia,  after  the  departure  of  the 
regular  freight  train  above  mentioned.  The  mail  train, 
which  left  at  forty-five  minutes  after  six  o'clock,  and  an 
extra  freight  train,  which  left  at  half  past  seven  o'clock  ;  of 
the  latter  of  which  the  conductor  and  engineer  of  the  re- 
gular freight  train  had  due  notice  before  leaving  Balti- 
more, and  that  it  would  follow  them  after  the  departure  of 
the  mail  train,  though  the  time  of  its  starting  was  not 
stated  to  them. 

The  weather  was  threatening,  and  snow  began  to  fall 
before  the  first  train  left  Baltimore;  it  made,  however,  its 
usual  time  to  the  customary  turn-out,  where  it  halted,  for 
the  next  succeeding  or  mail  train  to  pass  it,  and  which 
soon  afterwards  passed,  displaying  a  signal  light,  denoting 
that  there  was  still  another,  or  extra  train,  to  follow  it  that 
evening  in  the  same  direction  over  the  road.  After  the 
passage  of  the  mail  train,  the  regular  freight  train  resumed 
the  track  and  proceeded  on  its  course,  but  owing  to  the 
increased  fall  of  the  snow  and  the  force  of  the  wind,  which 
was  ahead,  it  was  retarded  in  its  usual  rate  of  speed,  and 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    475 

was  unable  to  make  more  than  eight  miles  an  hour  over 
the  ascending  grades  of  the  road ;  and  whilst  upon  one  of 
these  grades  it  was  overtaken  and  run  into,  thirty  miles 
from  Baltimore,  by  the  extra  freight  train,  which  had  fol- 
lowed it,  but  had  not  been  impeded  in  its  progress  by  the 
prevailing  snow-storm,  in  about  two  hours  after  it  had  left 
that  city. 

At  the  time  of  the  collision,  the  foremost  train  had  two 
lights  set,  one  on  the  engine  and  another  on  the  rear  end 
of  the  hindmost  car,  but  owing  to  the  falling  snow  and 
the  thickness  of  the  atmosphere,  the  engineer  of  the  extra 
train  did  not  discover  the  regular  train  until  he  was  within 
a  hundred  yards  of  it,  when  he  immediately  ordered  down 
the  brakes,  but  not  in  time  to  prevent  the  collision.  The 
engineer  of  the  forward  train  did  not  observe  the  other 
train,  and  had  no  intimation  of  its  approach,  until  he  felt 
the  concussion  produced  by  the  collision.  The  plaintiff, 
together  with  the  conductor  and  one  of  the  brakesmen  of 
the  regular  freight  train,  was  at  the  time  in  the  emigrant 
car  attached  to  the  rear  of  that  train,  which  was  badly 
stove  and  crushed  by  the  engine  of  the  extra  train,  and  by 
which  the  conductor  and  brakesman  were  instantly  killed, 
and  the  plaintiff  was  severely  injured.  lie  was  so  severely 
scalded  by  the  escape  of  steam  from  the  engine  of  the  rear 
train  into  the  car  in  which  he  was  seated,  that  he  was  now 
entirely  blind,  and  was  literally  without  eyes.  In  conse- 
quence of  the  intense  scalding  of  his  head  and  face,  they 
had  both  been  incurably  injured  internally,  and  in  a  short 
time  the  interior  portions  of  them  began  to  suppurate,  and 
the  entire  balls  had  since  flowed  from  their  sockets.  From 
the  same  cause  the  skin  of  his  head  had  more  than  once 
sloughed  off  with  both  of  his  ears,  and  he  was  permanently 
injured  in  other  portions  Of  his  body.  He  had  also  by  the 
burning  and  scalding  of  his  left  hand  been  entirely  bereft 
of  the  use  of  it  for  life  ;  and  it  is  perhaps  allowable  for  the 
reporter  to  add,  that  it  was  still  a  marvel  to  all  who  even 
then  beheld  him  that  lie  had  survived  such  a  catastrophe 
and  the  injuries  which  he  had  suffered  from  it. 


476  SUPERIOR  COURT. 

Evidence  was  also  adduced  on  behalf  of  the  plaintiff,  to 
prove  his  circumstances;  his  sober  and  industrious  habits, 
the  number  and  the  expenses  of  his  family,  the  profits  of 
his  business,  and  his  strict  attention  to  it,  previous  to  the 
disability  entailed  upon  him  by  this  misfortune. 

During  the  examination  of  the  testimony,  the  counsel  for 
the  plaintiff  also  offered  in  evidence  the  deposition  of  a 
witness  taken  out  of  the  State  on  a  commission  issued  for 
that  purpose,  which  was  objected  to  on  the  other  side,  be- 
cause the  witness  was  then  in  court  for  the  purpose  of 
being  sworn  and  examined,  and  was  ready  to  testify  in  the 
case  in  the  regular  and  usual  method,  if  his  testimony  was 
desired. 

James  A.  Bayard,  for  the  plaintiff:  The  commission, 
which  was  absolute  in  its  terms,  was  duly  executed  in  con- 
formity with  the  authority  of  the  Court,  and  the  party 
taking  it  had  a  right  to  have  the  deposition  read  in  evi- 
dence, although  the  witness  may  have  since  come  into  the 
State,  and  may  even  now  be  present  in  court.  It  is  distin- 
guishable under  the  provisions  of  the  Constitution  from  a 
commission  de  bene  esse,  that  is  to  say,  a  commission  for 
taking  the  testimony  of  aged,  infirm,  or  departing  wit- 
nesses, as  to  which  the  Constitution  provides  that  the  de- 
position shall  be  read  in  the  event  of  the  death,  departure 
out  of  the  State,  or  inability  of  the  witness  to  attend  at  the 
time  of  the  trial.  But  there  is  no  such  provision  in  the 
case  of  a  commission  dedimxs  potestatem,  or  a  commission 
to  take  depositions  out  of  the  State,  which  is  absolute  on 
its  face  and  not  subject  to  any  such  condition.  When  a 
deposition  has  thus  been  taken,  the  party  is  never  bound 
to  call  the  witness,  even  though  he  may  be  in  Court,  but 
may  read  his  deposition  in  evidence  ;  the  opposite  party, 
however,  may,  if  he  chooses,  have  the  witness  called  and 
sworn  and  may  examine  him  on  his  side,  notwithstanding 
he  may  have  omitted  to  file  cross-interrogatories  on  the 
issue  of  the  commission.  4  P/dl.  Ev.  l.*>0;  Plums  v.  Bald- 
irin,  14   Wend.  62. 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    477 

D.  M.  Bates,  for  the  defendant :  The  taking  of  testimony 
on  commission  in  any  instance,  is  a  departure  from  the 
common  law  method,  and  is  regarded  in  courts  of  common 
law  as  an  iuferior  mode  of  eliciting  evidence,  and  is  only 
to  be  resorted  to  from  necessity,  when  the  witness  is  beyond 
the  reach  of  the  process  of  the  Court,  and  his  testimony 
cannot  be  had  in  the  usual  and  better  method.  But  the 
very  reason  and  necessity  for  its  admission  in  the  case 
just  mentioned,  will  and  ought  to  exclude  it  when  the  wit- 
ness is  actually  in  Court  and  can  be  examined  in  its 
presence,  in  a  much  more  complete  and  satisfactory  man- 
ner. It  is  an  invariable  rule  of  law  to  require  the  best 
evidence  which  the  nature  of  the  case  will  admit  of,  and 
this  mode  of  adducing  testimony  is  acknowledged  to  be 
contrary  to  the  course  of  the  common  law,  and  necessarily 
inferior  in  its  nature ;  and  it  must  therefore  be  understood 
as  an  implied  or  necessary  condition  of  the  commission, 
that  the  deposition  shall  only  be  used  as  a  substitute  for 
the  testimony  of  the  witness  in  the  usual  and  better  method, 
when  he  cannot  be  produced  and  examined. 

By  the  Court:  We  recognize  the  distinction  between  a 
commission  of  this  kind  and  a  commission  de  bene  esse  to 
take  the  depositions  of  aged  and  infirm  witnesses  within 
the  State,  under  the  provisions  of  the  Constitution,  as  the 
latter  are  only  to  be  read  in  evidence  in  case  the  witnesses 
are  unable  to  attend,  while  the  former  are  without  any 
such  condition  or  qualification  ;  and  as  this  is  a  document 
duly  connected  with  the  case,  returned  and  filed  under  the 
rules  and  authority  of  the  Court,  we  think,  in  accordance 
with  the  cases  cited,  that  the  party  is  entitled  to  read  it  in 
evidence  to  the  jury. 

The  counsel  for  the  defence  then  proceeded  to  examine 
their  witnesses,  and  the  testimony  being  closed,  the  argu- 
ment commenced  before  the  jury. 

Bradford,  for  the  plaintiff:  This  is  an  action  against  a 
corporation,  which  is  a  common  carrier  tor  hire,  made  so 


478  SUPERIOR  COURT. 

by  public  statute  and  incorporated  for  that  purpose,  over 
whose  road  it  is  necessary  for  us  all  to  pass,  whenever  we 
have  occasion  to  travel  to  or  from  the  great  cities  which  it 
connects ;  for  by  the  great  improvement  which  it  has  con- 
structed, and  the  superior  facilities  for  travel  which  it 
affords,  it  has  long  since  superseded  all  other  modes  of 
public  conveyance,  especially  for  the  transportation  of  pas- 
sengers between  those  two  points,  as  well  as  between  all 
intermediate  places  on  the  line  of  this  railroad ;  and  the 
consequence  is,  that  it  now  enjoys  almost  the  sole  and 
exclusive  benefits  of  that  travel,  and  reaps  the  rich  profits 
and  rewards  accruing  to  it  from  the  large  and  lucrative 
business  which  it  has  thus  established  and  secured  to  itself 
as  common  carriers  of  passengers,  at  least,  between  these 
various  points.  This  suggestion,  however,  is  made  for  no 
improper  purpose,  but  simply  to  show,  that  if  the  general 
remark  so  often  made  at  the  present  day  be  true,  that  the 
railroad  has  become  a  public  necessity,  this  has  proved  to 
us  a  necessity  in  more  senses  than  one ;  and  hence  the  duty 
enjoined  upon  those  who  own  and  have  the  management 
of  such  works  and  improvements  as  common  carriers,  to 
exercise  the  strictest  vigilance  to  protect  the  lives  of  pas- 
sengers and  to  guard  against  accidents  and  injuries  to  their 
persons,  while  travelling  by  this  dangerous  mode  of  con- 
veyance, is  all  the  greater  and  the  more  obligatory  upon 
them,  in  consideration  of  the  facts  to  which  I  have  just 
adverted.  Without  intending,  however,  to  disparage,  or 
complain  of  the  general  management  and  conduct  of  this 
company,  whose  road,  up  to  the  time  of  the  catastrophe  in 
question,  had  been  operated  with  more  than  ordinary  safety 
and  security,  perhaps,  to  passengers,  he  should  contend 
that  in  the  case  now  before  them,  and  on  the  melancholy 
occasion  when  the  plaintiff  sustained  the  great  and  irre- 
parable injury,  the  damage  of  which  they  were  to  estimate, 
the  servants  of  the  company  having  the  conduct  and  con- 
trol of  the  train  in  which  he  was  travelling,  were  guilty  of 
gross  and  culpable  negligence,  in  consequence  of  which  he 
sustained  that  injury;  and  that  being  at  the  time  a  passen- 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    479 

ger  on  the  train  for  hire,  as  he  should  insist,  he  is  clearly 
entitled  to  maintain  the  suit,  and  to  recover  in  this  action. 
Every  person  who  takes  his  seat  in  a  train  of  railroad  cars 
commits  himself  to  the  custody  of  the  company  and  its 
servants  for  safe  transit  over  the  road,  and  in  proportion, 
to  the  implied  trust  and  coniidence  necessarily  reposed  in 
their  prudence  and  discretion,  is  the  diligence  and  fore- 
sight which  the  law  imperatively  imposes  as  an  obligation 
upon  them;  and  such  is  the  character  of  that  obligation, 
that  he  should  take  the  ground,  that  in  order  to  exonerate 
the  defendants  from  any  liability  on  account  of  the  injuries 
sustained  by  the  plaintiff,  it  would  be  necessary  for  them 
to  show  that  the  accident  was  one  which  no  human  fore- 
sight could  have  prevented. 

But  before  he  proceeded  to  the  consideration  of  this 
point,  he  would  inquire,  what  was  the  relation  subsisting 
between  the  plaintiff  and  defendants  at  the  -time  of  the 
accident?  The  defendants,  as  he  had  before  said,  were 
common  carriers  of  persons  as  well  as  goods,  and  the 
plaintiff  stood  in  the  relation  to  them  of  a  passenger  for 
hire.  lie  was  on  the  ill-fated  train  as  a  drover  with  his 
flock;  that  is  to  say,  he  was  in  a  train  particularly  designed 
for  the  accommodation  and  transportation  of  that  class  of 
persons  passing  over  the  road  with  such  property.  By  the 
regulation  of  the  company  he  had  a  right  to  travel  in  that 
train  without  further  compensation  to  the  company,  on 
paying  the  freight  for  his  stock  according  to  the  rates 
charged  under  the  circumstances;  and  having  paid  the 
freight  according  to  the  rate  required,  he  could  not  justly 
be  denominated  a  free  passenger,  as  might  be  contended 
for  on  the  other  side,  because  his  passage  was  included  and 
paid  for  in  the  price  of  the  freight.  Assume  it  as  a  fact, 
a! though  it  had  not  been  proved,  that  he  had  executed  no 
release  to  the  company  from  liability  for  the  safety  of  his 
stock,  and  that  he  had  at  the  time  no  drover's  ticket,  as 
required  by  the  custom  and  usage  of  the  company,  could 
that  affect  his  right  to  recover  in  this  action?  And  if  he 
had  not,  whose  fault  was  it?    lie  had  paid  for  his  right  in 


480  SUPERIOR  COURT. 

the  manner  stated,  and  in  the  mode  required  by  the  com- 
pany, to  go  in  that  train,  and  he  had  a  right  to  be  there 
and  to  travel  in  it,  whether  he  had  such  a  ticket  or  not; 
for  the  ticket,  after  all,  was  only  evidence  for  the  conductor 
that  the  passage  had  been  paid  for ;  and  if  he  permitted  a 
passenger  to  remain  in  the  train  without  demanding  the 
production  of  his  ticket,  it  was  omission  of  duty  on  his 
part,  but  it  could  not  make  the  passenger  a  trespasser,  or 
exonerate  the  company  and  its  agents  from  their  obligation 
to  carry  him  safely  and  securely,  so  far  as  human  diligence 
and  foresight,  under  the  circumstances,  would  permit. 

As  to  the  degree  of  diligence  required  of  railroad  com- 
panies under  such  circumstances,  there  was  a  difference 
between  a  contract  to  carry  passengers  and  a  contract  to 
carry  goods.  For  the  safety  of  goods,  a  common  carrier 
was  absolutely  bound  at  all  hazards ;  but  for  the  safety  of 
passengers,  he  was  not  liable,  if  the  accident  was  one 
which  human  foresight  could  not  have  prevented.  Christy 
v.  Griggs,  2  Camp.  Rep.  80 ;  2  Kent  Com.  600  ;  Aug.  §  Ames 
on  Corp.  492;  Stokes  v.  Salionstall,  13  Peters,  115.  Common 
carriers  of  passengers  were  bound  to  the  utmost  care  and 
diligence,  and  the  slightest  neglect,  or  accident  against 
which  human  foresight  could  guard,  would  render  them 
liable.  Mellroy  $  Wife  v.  The  Nat.  £  Lowell  R.  R.  Co.,  1 
Amer.  Railway  Cases,  591 ;  Laing  v.  Colder,  2  Ibid.  378.  And 
when  the  accident  occurred  by  a  collision  between  trains 
belonging  to  the  same  company,  it  was  prima  facie  the  re- 
sult of  negligence  on  the  part  of  the  company,  or  its  ser- 
vants. Skinner  v.  The  London  <f  Brighton  R.  Co.,  2  Eng. 
Law  ij-  E<[.  Rep.  360  ;  Carpean  v.  The  same  Co.,  48  Eng.  C. 
L.  R.  751.  Nor  is  it  necessary,  in  such  a  case,  that  the 
person  injured  should  have  been  a  passenger  on  the  road 
for  hire,  or  in  a  passenger  car,  if  he  was  lawfully  on  the 
road  by  the  lieense  or  invitation  of  the  company.  1  Amer. 
Railway  Cases,  109;  14  Howard,  468;  16  Howard,  469.  If 
the  party  was  not  a  trespasser  at  the  time  on  the  train,  he 
is  entitled  to  recover  for  any  injury  resulting  from  the  neg- 
ligence of  the  agents  of  the  company.     26  Eng.  L.  J-  E. 


FLINN  v.  PHIL.  WIL.  &  BALT.  EAILROAD  CO.    481 

Rep.  444  ;  6  Eng.  L.  £  E.  Rep.  305.  Neither  can  common 
carriers  limit  their  liability,  or  responsibility  for  negli- 
gence or  misconduct,  either  by  notice,  or  special  contract 
to  the  contrary.  Laing  v.  Colder,  2  Amer.  Railway  Cases, 
378 ;  1  Amer.  Railway  Cases,  171,  358 ;  Hollister  v.  Neiolin, 
19  Wend.  235 ;  Cole  v.  Goodwin,  19  Wend.  251 ;  Gould  v. 
Hill,  2  Hill,  623 ;  Coggs  v.  Bernard,  1  Smith's  Lead.  Cases, 
279.  And  negligence,  whether  gross  or  slight,  is  a  ques- 
tion of  fact,  under  the  circumstances  of  the  case,  to  be 
determined  by  the  jury.     Idem,  289,  note  3. 

Such  being  the  principles  of  law  which  he  considered 
applicable  to  this  case,  it  only  remained  for  the  jury  to 
inquire  and  determine  whether  the  injuries  sustained  by 
the  plaintiff  on  the  occasion  in  question,  were  or  were  not 
attributable  to  the  negligence,  or  the  want  of  proper  vigil- 
ance and  foresight  under  the  circumstances,  on  the  part 
of  the  agents  and  servants  of  the  company.  He  then  pro- 
ceeded to  review  and  comment  at  length  on  the  facts  proved 
in  the  case,  and  contended  that  the  collision  of  the  two 
trains,  by  which  the  plaintiff  had  been  so  seriously  and  se- 
verely injured  that  it  was  even  still  a  wonder  that  he  had  sur- 
vived it,  was  entirely  owing  to  the  negligence  and  neglect 
of  the  servants  of  the  company  on  the  preceding,  or  gene- 
ral freight  train,  in  failing  to  exercise  the  proper  care  and 
diligence,  under  the  peculiar  circumstances  of  the  occasion, 
to  avert  the  disaster  and  avoid  the  collision,  by  preventing 
the  succeeding  or  extra  freight  train  from  overtaking  and 
running  into  the  former,  duly  apprised  as  they  were  be- 
fore leaving  the  depot  at  Baltimore,  that  they  would  be 
followed  by  the  latter  train  that  evening  ;  and  admonished, 
as  they  should  have  been,  by  the  snow-storm  of  that  night, 
the  violent  head  wind  and  the  thick  atmosphere,  their  di- 
latory time  and  the  extraordinarily  slow  speed  they  were 
making,  under  the  well-known  impediments  which  opposed 
their  progress,  it  was  their  duty  to  have  kept  the  strictest 
lookout  for  the  approach  of  the  extra  train,  and  to  have 
left  some  notice  for  it  on  the  route  at  some  point  where 
it  would  halt,  of  the  obstructions  and  delay  which  it  had 


482  SUPERIOR  COURT. 

encountered,  and  the  unusually  slow  progress  which  it  was 
making.  Instead  of  which,  and  notwithstanding  these  ad- 
monitions, however,  no  notice  or  intimation  whatever,  wa.s 
left  for  the  officers  of  the  succeeding  train,  which  was  in 
the  meanwhile,  with  fatal  speed  and  unimpeded  progress, 
making  the  usual  time  for  such  trains  over  the  road,  in 
swift  pursuit  of  them,  running  two  miles  to  their  one,  and 
so  far  from  keeping  a  vigilant  lookout  for  its  coming,  it 
was  in  proof  that  every  employee  on  the  first  train  was 
shut  up  under  cover  at  the  time  of  the  contact,  and  even 
the  engineer  at  his  post  on  the  foremost  train,  had  no  idea 
and  no  conception  of  the  near  approach  of  the  other  train 
until  he  felt  the  shock  of  the  actual  collision.  Such  acci- 
dents could  not  occur  without  gross  and  criminal  negli- 
gence in  some  quarter  ;  and  for  his  own  part  the  responsi- 
bility for  this  sad  disaster  rested,  he  believed,  under  the 
circumstances,  with  those  who  had  the  control  and  running 
of  the  regular  freight  train  on  which  the  unfortunate  plain- 
tiff was  a  passenger.  But  whether  that  responsibility  was 
justly  imputable  to  them  alone,  or  was  in  part,  or  on  the 
whole,  attributable  to  the  misconduct,  mismanagement, 
or  want  of  care  and  foresight  on  the  part  of  the  officers  of 
the  other  train,  was  altogether  immaterial,  as  they  were 
alike  agents  and  servants  of  the  same  company,  which  was 
equally  answerable  for  the  injuries  resulting  from  their  neg- 
lect and  negligence,  viewed  in  either  aspect;  and  in  either 
case,  the  plain  tiff  was  entitled  to  recover. 

D.  M.  Bates,  for  the  defendant :  The  question  in  this 
case  was,  whether  the  defendant  in  this  action,  which  was 
an  action  on  the  case,  and  not  assumpsit  upon  an  implied 
contract,  was  liable  to  the  plaintiff  for  the  breach  of  a  legal 
duty  imposed  on  the  defendant  by  law?  lie  should  eon- 
tend  that  the  defendant  had  been  guilty  of  no  such  delin- 
quency in  this  case;  and  he  might  go  further  and  say,  that 
it  had  never  been  guilty  of  any  such  delinquency  in  any 
other  case.  For  it  was  a  remarkable  fact,  that  since  this 
company  went  into  operation,  some  twenty  years  since,  no 


FLINN  v.  PHIL.  WIL.  &  BALT    RAILROAD  CO.    483 

passenger  keeping  his  proper  place,  had  ever  suffered  any 
injury  on  any  part  of  its  railroad. 

What  were  the  legal  obligations  imposed  upon  railroad 
companies  as  common  carriers  of  passengers?  For  the 
purposes  of  this  case,  and  so  far  as  their  liability  for  perso- 
nal injuries  was  concerned,  this  question  might  be  con- 
sidered in  two  aspects.  First,  as  common  carriers  of  pas- 
sengers for  hire,  as  in  the  case  of  the  conveyance  of  a 
passenger  in  a  passenger  train  for  a  reward ;  and  secondly, 
in  case  of  a  special  undertaking  to  convey  the  individual 
safely  for  a  compensation,  but  not  in  the  character  of  com- 
mon carriers ;  in  which  case  this  action  would  not  lie,  the 
remedy  being  by  assumjisit  on  the  promise  or  special  un- 
dertaking, and  not  for  the  breach  of  any  general  duty  or 
obligation  imposed  by  law. 

What  then  were  common  carriers  ?  For  a  general  defini- 
tion he  would  refer  to  an  unquestionable  authority,  2  Kent's 
Com.  598.  Now  according  to  this  definition  a  common 
carrier  is  one  who  holds  himself  out  to  the  world  generally 
to  carry  all  persons  indifferently  for  hire.  But  did  the  de- 
fendants do  this  by  their  freight  trains  ?  Did  they  hold 
themselves  out  to  the  world  to  carry  all  person's  indiffer- 
ently by  their  freight  trains  for  hire,  or  without  it  ?  All  the 
proof  in  the  case  expressly  negatived  such  an  idea,  and  all 
the  regulations  of  the  company  positively  forbade  such  a 
thing.  Xow,  if  the  plaintiff' had  been  on  a  passenger  train 
at  the  time  of  the  injury  received  by  him,  the  relation  of 
common  carriers  towards  him  would  have  attached  to  the 
defendants.  But  he  was  on  a  freight  train  with  a  passen- 
ger ear  attached,  but  not,  as  was  clearly  proved,  for  the 
conveyance  of  passengers  at  all  from  Baltimore  to  Phila- 
delphia, but  only  to  be  taken  back  to  the  latter  city  on 
that  occasion  ;  and  as  to  which  train  the  defendants  were 
common  carriers  merely  for  the  transportation  of  freight 
or  merchandise,  and  not  for  the  conveyance  of  passengers. 
And  he  was  not  only  on  such  a  train,  but  he  was  there 
upon  a  condition  which  expressly  exempted  the  company 
from  any  liability  for  his  safe  conveyance  as  a  passenger 


484  SUPERIOR  COURT. 

on  that  train.  In  a  case  like  this,  whatever  obligations 
the  company  may  have  assumed  in  regard  to  him,  they 
were  not  the  obligations  of  common  carriers.  Railroad 
companies  are  not  common  carriers  of  goods  by  their  pas- 
senger trains,  and  if  they  carry  goods  by  such  trains,  it 
must  be  proved  and  will  not  be  assumed.  Pierce  on  Amer. 
Railr.  Laiv,  408 ;  3  Foster's  Hep.  75.  So  the  occasional 
taking  of  passengers  by  freight  trains,  particularly  when 
they  do  not  open  their  office  for  the  sale  of  passenger 
tickets,  or  hold  themselves  out  as  common  carriers  of  pas- 
sengers by  such  trains,  will  not  render  or  constitute  them 
common  carriers  of  passengers  by  such  trains,  or  subject 
them  to  the  obligations  and  liabilities  of  common  carriers 
of  passengers  by  freight  trains.  Murch  v.  The  Concord  R. 
Ji.  Co.,  9  Foster's  Hep.  41.  But  it  may  be  said  that  the 
present  defendants  were  common  carriers  of  drovers  for 
hire,  and  as  to  an  individual  of  that  class,  they  assumed 
and  were  bound  by  the  obligations  of  common  carriers. 
This,  however,  did  not  come  within  the  definition  before 
cited;  besides,  the  plaintiff  in  this  case  did  not  go  as  a 
passenger,  but  in  charge  of  his  stock,  and  in  connection 
with  an  object  subsidiary  to  the  transportation  of  freight, 
and  in  the  employ  of  the  company  for  that  purpo.se  and 
upon  terms  which  exempted  the  company  from  any  lia- 
bility for  his  personal  safety.  He  was  not  in  that  train  as 
a  passenger,  or  as  a  traveller,  but  he  was  simply  there  by 
the  permission  of  the  company  for  his  own  purposes,  law- 
fully he  would  admit,  but  without  paying  any  charge  or 
fare  for  his  passage,  except  what  he  paid  for  the  transpor- 
tation of  his  live  stock,  in  consideration  of  releasing  the 
company  from  the  obligation  of  taking  care  of  it,  and  on 
the  condition  that  the  company  should  be  at  no  risk  for 
his  personal  safety.  Would  it  be  pretended  that  he  hud 
no  actual  notice  of  this  condition  ?  Had  it  not  been  proved 
that  he  had  no  right  to  be  there  without  a  drover's  ticket, 
which  contained  that  express  condition  ?  And  if  he  had 
no  such  ticket,  then  he  was  there  unlawfully,  and  it'  he 
was  there  lawfully,  then  he  must  have  had  such  a  ticket 


FLINN  v.  PHIL.  WIL.  &  BALT.  EAILKOAD  CO.    485 

and  had  actual  notice,  and  the  other  side  might  take  either 
horn  of  the  dilemma  at  their  option  and  pleasure.  He 
was  there,  as  he  had  said  before,  to  take  charge  of  his  own 
stock,  and  not  as  a  passenger,  not  as  a  traveller,  for  another 
condition  of  the  drover's  ticket  which  he  had,  expressly 
excluded  him  from  the  passenger  trains  of  the  company 
upon  that  ticket.  He  was  there  then  that  night  by  the 
permission  of  the  company,  not  as  a  passenger  or  traveller, 
or  for  any  purpose  whatever,  so  far  as  the  company  was 
concerned,  pertaining  to  his  own  passage  from  one  place 
to  another,  but  solely  to  take  care  of  his  own  property  and 
to  relieve  the  company  of  that  duty,  which  otherwise  would 
have  devolved  upon  it. 

But  was  it  competent  for  the  company  to  exempt  them- 
selves from  such  a  liability ;  the  liability,  he  meant,  for  his 
personal  safety  under  such  circumstances  ?  He  had  al- 
ready shown  that  the  company  in  this  transaction  was 
not  acting  as  a  common  carrier,  and  therefore  it  did  not 
present  or  involve  the  nice  and  frequently-mooted  ques- 
tion, whether  a  common  carrier  can  exempt  himself  from 
his  general  duty  and  common-law  liability,  by  notice  or 
special  agreement,  as  against  public  policy.  On  the  con- 
trary, this  was  a  case  upon  the  facts  proved,  of  a  special 
undertaking  by  a  private  carrier,  or  ordinary  bailee  for 
hire,  in  relation  to  which  it  had  been  uniformly  held,  both 
in  this  country  and  in  England,  that  such  a  carrier  or 
bailee  may  exonerate  himself  from  such  a  liability  by  no- 
tice, or  agreement.  Ang.  $-  Ames  on  Carriers,  sec.  59;  Alex- 
ander v.  Green,  3  Hill,  9;  Pierce  on  Amer.  Railr.  Lair,  484. 
As  to  the  other  question,  he  would  here  take  occasion  to 
say,  that  he  thought  the  rule  which  forbids,  on  grounds  of 
public  policy,  common  carriers  to  restrict  or  limit  their 
legal  responsibility  for  gross  negligence,  by  notice  or  agree- 
ment, as  recognized  and  established  in  the  case  of  The  X. 
J.  Steam  Nat\  Co.  v.  The  Merchants'1  Bank,  \)  How.  344,  was 
a  wise  rule  and  sound  in  principle.  But  to  return  to  the 
point  which  he  was  considering,  he  would  ^o  further  and 
contend  that  even  if  the  plaintiff  did  pass  on  the  train  that 


486  SUPERIOR  COURT. 

night,  for  the  purpose  before  stated,  under  a  usage  or  cus- 
tom of  the  company,  not  as  a  passenger,  but  for  an  object 
incident  to  the  freighting  business  by  that  train,  and  with- 
out any  condition  or  stipulation  on  the  part  of  the  com- 
pany, that  it  would  not  assume  any  risk  for  his  personal 
safety,  still  he  could  not  recover  in  this  action ;  because 
the  company  did  not  stand  in  the  relation  of  a  common 
carrier  to  him  for  his  conveyance  as  a  passenger,  and  there- 
fore it  did  not  assume  or  become  in  law  liable  to  the  obli- 
gation to  carry  him  safely.  He  would  not  say  that  he  was 
on  the  train  as  an  employee  of  the  company,  although  he 
was  there,  as  he  would  maintain  so  far  as  the  company  was 
concerned,  solely  for  the  purpose  of  taking  care  of  his  stock 
which  it  had  contracted  to  transport  over  the  road ;  and 
viewed  in  this  light,  he  would  say  that  he  was  pro  hac  vice, 
in  the  employment  of  the  company,  and  was  associated 
with  the  regular  and  ordinary  servants  in  and  about  the 
business  of  the  company  in  transporting  his  stock  over  the 
road ;  and  whether  he  was  so  employed  gratuitously  or  for 
hire,  he  should  hold  that  he  had  no  cause  of  action,  what- 
ever, against  his  employer,  the  company,  for  any  injury 
sustained  by  him  while  so  employed,  in  the  absence  of  any 
proof  that  the  injury  resulted  from  a  want  of  reasonable 
diligence  on  the  part  of  the  company  in  providing  suitable 
cars,  engines,  road,  and  machinery  for  the  business.  Be- 
cause if  he  stood  on  this  occasion,  and  for  the  purpose  of 
this  passage  over  the  road,  in  the  relation  of  a  servant,  or 
person  in  the  employment  of  the  company,  and  the  acci- 
dent was  the  result  of  the  negligence  of  the  servants  of  the 
company  while  engaged  in  the  same  employment  with  him, 
then  the  company  was  not  liable  to  him  for  the  injury  re- 
sulting to  him  from  such  negligence;  for  every  servant  is 
presumed  to  assume  the  risks  necessarily  incident  to  his 
service,  and  those  arising  from  the  negligence  of  his  fellow- 
servants  employed  with  him;  at  all  events,  his  employer  is 
not  responsible  to  him  for  any  injury  so  arising  to  him. 
< 'aricellw  The  Bost.  ft  Woost.  R.  R.  Co.,  1  Amer.  liailw.  Casi  s, 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.     487 

347 ;  Hutchinson  v.  The  Railway  Company,  1  Exch.  Rep.  351 ; 
JDeyg  v.  The  Midland  Railw.  Co.,  1  Exch.  R.  (N.  S.)  779. 

But  there  was  one  important  fact  proved  in  the  cause 
which  had  not  been  adverted  to  in  the  opening  argument, 
to  which  he  now  wished  to  call  the  attention  of  the  Court 
and  jury.  The  fact  to  which  he  alluded  was  the  detention 
of  the  regular  freight  train,  at  the  instance  and  request  of 
the  plaintiff,  on  the  occasion  in  question,  till  after  the  usual 
time  of  its  departure  from  the  depot  in  Baltimore.  It  would 
be  remembered,  for  it  was  proved  by  several  of  the  wit- 
nesses, that  the  plaintiff  reached  the  depot  with  his  sheep 
that  afternoon,  only  a  short  time  before  the  hour  for  the 
through  freight  train  to  start;  but  being  anxious  to  get  on 
with  them  that  evening,  to  Philadelphia,  he  applied  to  and 
obtained  the  consent  of  the  proper  officer  to  detain  the 
train  until  his  sheep  could  be  placed  in  it,  which  was  done 
for  his  especial  accommodation.  This  delayed  the  train 
half  an  hour  after  its  usual  and  appointed  time  of  leaving, 
and  which  should  not  have  been  done  for  his  or  anybody 
else's  benefit  or  convenience ;  and  had  it  not  been  done, 
this  melancholy  accident  (more  melancholy  and  fatal,  how- 
ever, to  some  others  than  to  this  plaintiff,  sad  as  it  proved 
to  him,  for  two  others  were  instantly  killed  by  it),  never 
would  have  happened  either  to  him  or  them,  or  to  any 
other  person.  For  it  had  been  shown  in  the  evidence, 
that  but  for  this  delay  of  half  an  hour  at  the  starting, 
the  regular  or  through  freight  train  would  have  reached 
Havre  de  Grace,  or  the  Susquehanna  River,  before  the 
extra  freight  train  could  have  overtaken  it.  Indeed,  it 
was  proved  that  in  a  few  more  minutes,  the  former  train, 
which  at  the  time  of  the  collision  was  moving  with  di- 
minished speed  up  an  ascending  grade  in  the  road,  would 
have  been  over  it,  and  would  then  have  been  on  a  de- 
scending grade  almost  the  entire  way  from  there  to  the 
Susquehanna  River;  and  once  upon  that  grade,  which  it 
would  have  reached  in  five  minutes  more,  the  accident 
would  have  been  altogether  avoided.  Well,  now,  when 
viewed  in  this  aspect,  and  when  we  consider  all  the  facts 


488  SUPERIOR  COURT. 

and  circumstances  in  connection  with,  and  especially  the 
primary  cause  of  it,  who  was  most  accountable,  the  plain- 
tiff or  the  defendant,  for  this  sad  and  accidental  calamity  ? 
So  far  as  human  agency  was  responsible  for  it,  no  one,  he 
apprehended,  who  was  cognizant  of  all  the  circumstances, 
and  particularly  the  one  which  laid  the  foundation  for  it, 
even  if  he  should  be  disposed  to  charge  it  in  any  measure 
to  the  mismanagement  and  misconduct  of  the  servants  of 
the  company,  would  presume  to  say  that  the  plaintiff  was 
not  equally  accountable  with  them  for  it.  But  if  the  plain- 
tiff and  the  company,  or  their  servants,  were  equally  at 
fault,  or  the  plaintiff  contributed  by  his  own  act  to  produce 
the  accident,  he  could  not  maintain  an  action  for  the  in- 
jury which  he  had  sustained  by  reason  of  it.  Pierce  on  Railr. 
Law,  276 ;  Murch  v.  The  Concord  i?.  Ji.  Co.,  9  Foster  Hep.  41. 

Gordon,  for  the  defendant,  then  addressed  the  jury,  hold- 
ing in  the  main  the  same  line  of  legal  argument. 

James  A.  Bayard,  for  the  plaintiff:  The  question  in  this 
case  was,  whether  the  defendants,  on  the  facts  proved,  were 
bound  to  compensate  the  plaintiff  in  damages  for  the  suf- 
fering, injury,  expense,  and  loss  sustained  by  him  in  a  col- 
lision between  two  trains  of  the  company,  both  managed 
and  operated  by  the  servants  or  agents  of  the  company, 
and  if  so  bound  what  those  damages  should  be  ? 

In  our  view  of  the  case,  the  plaintiff's  right  to  recover 
depended  on  three  facts:  First,  was  he  lawfully  on  board 
of  the  cars  of  the  defendants,  to  be  transported  over  the 
road,  or  any  part  of  it,  at  the  time  of  the  collision  ?  Or, 
in  other  words,  was  he  a  trespasser  on  the  train  of  the 
company  at  that  time?  Secondly,  was  the  injury  which 
he  received  the  result  of  the  actionable  negligence  of  the 
servants  of  the  defendants?  Thirdly,  what  damages  were 
recoverable  in  consequence  of  the  injury  sustained  by  him  ? 
Under  the  first  material  fact,  or  point  stated,  several  ques- 
tions of  law  had  been  raised  on  the  other  side,  which  lie 
should  present  as  he  understood  them,  and  endeavor  to 


FLINN  v.  PHIL.  WIL.  &  BAXT.  RAILROAD  CO.    489 

answer  them.  And,  in  the  first  place,  he  would  remark, 
that  if  the  plaintiff  was  on  the  train  by  the  permission  of 
the  agent  or  servant  of  the  company,  who  had  the  author- 
ity to  control  the  admission  of  passengers, — -to  exclude  and 
eject  them  when  unlawfully  there,  and  to  collect  their 
tickets  and  exact  their  fare,  then,  whether  the  plaintiff 
had  or  had  not  paid  for  his  passage,  or  whether  the  per- 
mission to  be  there  was  gratuitous,  or  for  hire,  he  was 
lawfully  there;  and  if  he  was  there  in  good  faith,  and  not 
by  collusion  with  the  agent  who  had  the  authority  to  admit 
or  exclude  him,  it  was  immaterial  whether  the  officer  had, 
or  had  not,  disobeyed  his  particular  orders  in  such  a  case; 
the  defendants  were  liable,  provided  the  injury  was  the 
result  of  the  negligence  of  their  servants.  Phil.  #  Reading 
R.  R.  Co.  v.  Derby,  20  Cart.  C.  S.  C.  Rep.  291.  The  plain- 
tiff was  also  there  lawfully,  if  he  was  there  as  the  owner  of 
live  stock,  with  such  stock  on  the  train,  whether  he  had  or 
had  not  released  the  company  from  risk  on  account  of  it, 
and  with  or  without  a  drover's  ticket,  if  the  conductor  per- 
mitted him  to  remain  upon  it;  and  being  lawfully  there, 
it  was  immaterial  what  kind  of  a  train  it  was,  whether  a 
passenger  or  freight  train ;  the  company  stood  in  the  rela- 
tion of  a  common  carrier  of  persons  towards  him,  and  was 
bound  by  law  to  carry  him  safely,  and  could  not  relieve  itself 
of  its  liability  for  injuries  to  him  resulting  from  the  negli- 
gence of  its  servants,  by  any  notice,  condition,  or  limita- 
tion, which  it  might  choose  to  adopt,  as  against  public- 
policy.  Phil,  £  Reading  R.  R.  Co.  v.  Derby,  20  Curt.  C.  S.  C. 
Rep.  291;  Collet  v.  The  Land.  £  Bright.  R.  Co.,  6  Eng.  Laic 
$  Eq.  Rep.  306 ;  26  Eng.  Law  £  Eq.  Rep.  421 ;  Skinner  v. 
The  Lond.  £  Bright.  R.  Co.,  2  Eng.  Law  £  Eq.  Rep.  360; 
Northern  Railway  Co.  v.  Harrison,  26  Eng.  Law  $•  Eq.  Hep. 
443.  lie  had  cited  these  eases  for  the  purpose  of  showing, 
that  if  the  plaintiff  was  not  a  trespasser,  but  was  lawfully 
on  the  train,  in  the  cars  of  the  company,  it  matters  not 
what  kind  of  a  train  or  car  it  might  have  been;  whether  a 
freight  or  passenger  train,  a  regular  or  an  excursion  train, 
or  a  president's  car,  used  only  to  convey  the  officers  and 

32 


490  SUPERIOR  COURT. 

their  guests  over  the  road  on  special  occasions,  he  was 
there  as  a  passenger  over  the  road,  and  the  company  was 
bound  as  common  carriers  of  passengers  as  to  him,  and  it 
was  their  duty  and  their  engagement  to  carry  him  safely, 
and  they  were  liable  for  any  injury  which  befell  him  in 
consequence  of  the  negligence  of  its  servants,  and  the 
company  could  not  relieve  or  divest  itself  of  this  responsi- 
bility. On  the  other  side  it  had  been  contended,  that 
though  the  defendants  are  general  carriers  both  of  persons 
and  property,  this  was  a  freight  train  from  Baltimore  to 
Philadelphia,  by  which  they  were  common  carriers  of 
goods  only,  and  that  the  plaintiff  had  no  right  to  be  there, 
except  by  special  authority  and  on  terms  agreed  upon;  and 
a  distinction  was  taken  between  a  freight  and  passenger 
train,  that  if  they  do  not  make  a  practice  of  carrying  pas- 
sengers by  the  former,  the  occasional  carriage  of  passen- 
gers by  such  trains  does  not  make  them  liable  as  common 
carriers  to  such  persons  by  such  trains.  But  his  answer 
to  this  was,  that  although  the  distinction  may  be  sound  to 
this  extent,  that  the  defendants  were  not  bound  to  carry 
persons  in  a  freight  train,  which,  in  general,  was  not  pro- 
vided with  accommodations  for  that  purpose;  yet,  being 
general  carriers  of  persons  and  goods  by  occupation,  if 
they  do  carry  a  passenger,  it  is  as  common  carriers;  and 
if  they  undertake  to  carry,  the  obligation  is  to  carry  safely, 
so  tar  as  their  own  negligence,  or  that  of  their  servants,  is 
involved.  The  authorities  which  he  had  before  cited  would 
sustain  him  in  this  position.  The  cases  cited  from  "Fos- 
ter's Reports,"  on  the  other  side,  were,  in  fact,  but  one  and 
the  same  case,  and  no  such  doctrine  could  be  found  else- 
where. The  analogy  of  the  wagoner  was  unsound,  when 
applied  to  a  company  which  is  a  general  carrier  of  persons 
as  well  as  goods.  It  might  be  doubted  even,  whether  a 
wagoner,  who  occasionally  carries  a  passenger,  is  not  liable, 
as  a  common  carrier,  for  his  safety.  2  Kent  Com.  598. 

But  it  was  further  argued  on  the  other  side,  that  by  a 
freight  train  established  for  that  purpose  by  the  defen- 
dants, they  might  agree  specially  to  transport  a  class  of 
persons  at  their  own  risk,  and  without  the  responsibility 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    491 

of  a  common  carrier  as  to  persons,  and  that  if  the  condition 
contained  in  the  special  agreement  exempted  them  from 
liability  for  negligence,  it  was  not  invalid.  Such  a  condi- 
tion, however,  was  utterly  void;  for,  as  he  had  before  said, 
if  they  carry  at  all,  they  must  carry  safely,  so  far,  at  least, 
as  due  and  proper  diligence  could  insure  it,  and  so  carry- 
ing, they  carry  as  common  carriers,  and  are  responsible 
for  negligence.  Such  a  condition,  he  would  repeat,  was 
utterly  and  absolutely  void,  as  against  public  policy;  and 
common  carriers  cannot  contract  against  public  policy, 
although  they  were  often  scheming  and  endeavoring  to  do 
so.  1  Smith's  Lead.  Cases,  Hare  $  Wal.  Notes,  279.  And 
he  would  ask  the  Court  to  charge  the  jury,  that  the  notices 
on  the  drover's  tickets,  that  no  risk  would  be  assumed  by 
the  company  for  the  personal  safety  of  such  persons,  were 
void  in  law  and  no  defence  in  this  action.  Also,  that  the 
defendants  could  make  no  valid  contract  for  the  transpor- 
tation of  a  person  over  their  road,  unless  subject  to  their 
legal  liability  as  common  carriers,  or  to  exempt  themselves 
from  their  responsibility  as  such,  for  the  negligence  or  want 
of  skill  of  their  agents,  whether  the  person  was  to  be  trans- 
ported in  a  passenger  or  in  a  freight  train;  and  if  the  pay- 
ment of  the  price  for  freight  on  his  live  stock,  and  the 
execution  of  the  release  by  the  plaintiff,  gave  him  a  right 
to  a  drover's  ticket,  by  the  practice  and  usage  or  regula- 
tions of  the  company,  the  notice  indorsed  on  it,  so  far  as 
regarded  the  exemption  of  the  defendants  from  all  risk  to 
the  person  of  the  drover,  could  not,  and  would  not,  protect 
them  from  liability  for  a  personal  injury  caused  by  the 
negligence  of  their  servants. 

It  had  also  been  said  that  if  the  company  did  not  hold 
itself  out  to  the  public  as  a  common  carrier  of  persons  by 
its  freight  trains,  it  was  not  liable  as  such.  But  this  was 
a  question  of  fact  for  the  jury;  for  although  the  company 
might  make  no  publication  and  sell  no  tickets  in  Balti- 
more, it  might  nevertheless  hold  itself  out  as  a  common 
carrier  of  persons  by  its  freight  trains;  and  so  far  as  this 
class  of  persons  were  concerned,  it  certainly  did  so.     But 


492  SUPERIOR  COURT. 

these  defendants  were  a  corporation  created  by  law  and 
were  limited  to  the  objects  of  their  charter,  to  construct  a 
railroad  and  to  transport  either  persons  or  goods,  as  com- 
mon carriers.  By  the  law  of  their  existence,  they  engaged 
in  the  business  of  transporting  passengers,  or  goods,  as 
common  carriers  alone,  and  unless  an  express  authority  was 
given  to  carry  by  special  agreement,  they  do  not  possess 
it,  for  the  settled  rule  of  law  is  that  corporations  can  claim 
no  implied  powers,  except  such  as  are  essential  to  carry 
into  effect  the  objects  for  which  they  are  created.  Where 
then  did  this  corporation  obtain  the  power  to  carry  either 
persons  or  property,  except  as  common  carriers  ?  The 
distinction  suggested  in  the  argument  on  the  other  side, 
that  the  plaintiff  was  on  the  freight  train  in  question,  for 
his  own  personal  convenience  and  advantage,  attending  to 
his  own  business  and  to  take  care  of  his  own  stock,  was 
both  ingenious  and  unsound ;  for  the  answer  to  it  was, 
that  the  company,  to  increase  their  freighting  business  in 
this  particular  line  and  for  their  own  benefit,  and  to  re- 
lieve themselves  from  the  necessity  of  employing,  at  their 
own  expense,  a  person  to  take  charge  of  the  stock,  trans- 
ported the  owner  or  drover  in  the  same  train  with  it,  to 
attend  to  the  loading  and  unloading  of  it,  which  rendered 
a  special  agent  necessary  for  that  purpose  ;  and  for  this 
reason,  they  could  well  afford  to  carry  him  free,  as  it  was 
termed,  in  consideration  of  the  benefit  which  they  derived 
from  it  and  the  liberal  compensation  which  they  received 
as  freight  for  the  transportation  of  himself  and  his  stock. 
The  two  rates  of  charge  in  this  respect,  the  larger  of  which 
one  of  the  witnesses,  an  agent  of  the  company,  had  testi- 
fied that  he  never  knew  to  be  paid,  was  but  another  con- 
trivance to  get  rid  of  their  legal  liability  as  common 
carriers.  But  the  company,  as  common  carriers  of  per- 
sons and  goods,  published  that  they  would  carry  a  class 
of  persons,  that  was  to  say,  drovers  with  their  stock,  on 
their  freight  trains.  Could  that  be  in  any  other  mode 
than  as  common  carriers  ?  It  was  not  a  special  agree- 
ment with  an  individual,  but  merely  a  general  notice,  and 


FLLNN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.     493 

that,  too,  against  the  policy  of  the  law  and  the  interests 
of  the  public.  If  they  carry  persons  at  all,  they  must 
carry  them  as  men,  as  human  beings,  and  it  was  the 
first  time  he  had  ever  heard  of  the  attempt  to  carry  a 
class,  and  at  the  same  time  to  claim  exemption  from 
their  liability  as  common  carriers  for  negligence.  If  this 
should  be  sanctioned,  the  next  contrivance  might  be  to 
obtain  exemption  from  liability  as  to  passengers  gene- 
rally, by  a  similar  system  of  two  rates  of  charge.  So  far 
as  the  obligation  rested  on  the  company  and  its  servants 
to  exercise  due  skill,  care,  and  diligence,  he  knew  no  dis- 
tinction in  law  between  a  freight  train  and  a  passenger 
train.  It  was  true  that  a  person  lawfully  travelling  by  a 
freight  train,  could  not  expect  the  same  accommodations 
as  by  a  passenger  train,  but  he  was  entitled  to  the  same 
care  and  diligence  for  the  avoidance  of  collisions  and  in- 
juries on  the  one  train  as  on  the  other.  There  was  no- 
thing in  the  suggestion  that  the  plaintiff  went  on  the 
train  in  the  service  and  as  an  employee,  pro  hac  vice,  of  the 
defendants;  and  there  was  no  reason,  either  m  fact  or  in 
law,  for  assigning  him  such  an  impossible  position  in  con- 
nection with  the  case,  and  therefore,  the  cases  cited  on 
the  other  side  upon  that  point  had  no  application  to  it. 
For  the  plaintiff  stood  in  no  relation  of  a  servant  to  the 
defendants ;  on  the  contrary,  they  were  his  servants  for 
the  time  being,  and  undertook  safely  to  convey  him  over 
their  road  with  his  stock  for  the  liberal  reward  which  they 
had  already  been  paid  for  it.  Nor  was  there  anything 
more  real  or  substantial  in  the  further  objection  taken  by 
them,  that  the  plaintiff,  by  his  own  act  in  delaying  the  de- 
parture of  the  train  from  Baltimore,  contributed  to  pro- 
duce the  disaster.  Because  it  was  wholly  the  act,  and  the 
voluntary  act  of  the  company,  or  their  servants,  although 
it  was  done  at  the  request  of  the  plaintiff.  Rut  how  could 
this  have  the  effect  to  exonerate  them  from  their  liability 
for  negligence  occurring  afterwards?  Or  from  their  ob- 
ligation to  exercise  due  care  and  diligence  after  their  de- 
parture?    There  was  nothing  therefore  in   this  objection 


494  SUPERIOR  COURT. 

and  having  glanced  at,  as  he  thought,  and  satisfactorily  re- 
plied to  them  all,  he  should  now  address  himself  mora 
particularly  to  the  jury  on  the  question  of  damages. 

The  Court,  Woottcn,  «/.,  charged  the  jury  :  As  you  are  al- 
ready aware,  this  is  an  action  brought  by  John  Flinn 
against  the  Philadelphia,  Wilmington  and  Baltimore  Rail- 
road Company,  for  the  purpose  of  recovering  damages, 
which  it  is  alleged  lie  sustained  on  the  night  of  the  18th  of 
March,  1856,  by  reason  of  a  collision  between  what  is  called 
the  through  freight  train,  which  left  Baltimore  at  half-past 
five  o'clock  of  that  day,  and  an  extra  freight  train  which 
left  the  same  place  at  half-past  seven  o'clock  of  the  same 
day,  and  followed  the  through  freight  train.  The  regular 
mail  train  having  left  at  a  quarter  before  seven. 

It  appears  that  the  mail  train,  at  some  one  of  the  inter- 
mediate stations,  passed  the  through  freight  train,  and  that 
the  latter  then  proceeded  towards  its  place  of  destination, 
and  that  about  nine  o'cloek,  when  the  train  was  in  sight 
of  Aberdeen,  about  four  miles  from  Havre  de  Grace,  the 
through  freight  train  on  which  the  plaintiff  was,  was  run 
into  by  the  extra  freight  train,  which  was  following  it, 
whereby  the  collision  referred  to  in  this  case  occurred, 
which  resulted  in  the  injury  to  the  plaintiff  for  which  he 
is  now  seeking  redress. 

The  plaintiff  rests  his  right  of  recovery  on  the  ground 
of  the  responsibility  of  the  defendants — the  Railroad  Com- 
pany— to  carry  him  over  their  road  safely,  as  a  passenger. 
But  it  is  further  contended  for  him,  that  whether  he  was 
on  board  as  a  passenger  or  otherwise,  if  he  was  rightfully 
and  lawfully  there,  the  defendants  are  equally  liable  for 
any  injury  he  received,  which  resulted  from  the  negligence 
of  the  defendants'  servants.  On  these  grounds,  the  plain- 
tiff asserts  his  right  of  recovery  of  damages  commensurate 
with  the  injury  received  by  him. 

The  defendants  resist  his  right  of  recovery  on  several 
distinct  grounds. 

First.   That  the  defendants  were  not  and  could  not   be 


FLINN  v.  PHIL.  WIL.  &  BALT.  KAILEOAD  CO.    495 

regarded  as  common  carriers  of  persons,  in  respect  to  the 
plaintiff  on  that  occasion. 

Second.  That  if  the  defendants  are  liable  at  all,  it  is  on 
a  special  contract  or  undertaking,  and  that  he  cannot  re- 
cover in  this  form  of  action. 

Third.  That  the  relation  in  which  the  plaintiff  stood  to 
the  defendants  on  this  occasion,  was  not  that  of  a  passen- 
ger or  traveller  over  their  road,  as  in  ordinary  cases,  but 
that  he  was  in  the  freight  train  before  mentioned,  rather 
in  the  character  or  capacity  of  an  employee  or  servant,  by 
the  permission  and  agreement  of  the  company,  to  take  care 
of  his  live  stock,  and  upon  terms  and  conditions  which 
exempted  the  company  from  any  liability  for  the  injury 
which  he  received. 

Fourth.  That  the  injury  complained  of  was  occasioned, 
in  part  at  least,  by  the  fault  of  the  plaintiff,  and  not  by 
the  negligence  of  the  defendants,  and  therefore,  he  is  not 
entitled  to  recover. 

They  say  the  through  freight  train  was  detained  at  Bal- 
timore some  twenty-live  minutes  beyond  its  usual  time  of 
departure,  at  the  instance  and  request  of  the  plaintiff,  to 
enable  him  to  get  his  stock  on  board,  and  that  that  delay 
was  the  cause  of  the  collision,  which  resulted  in  the  injury 
to  the  plaintiff,  and  without  which  he  would  not  have  re- 
ceived it. 

We  will  now  proceed,  gentlemen,  to  notice  the  several 
matters  of  defence,  and  endeavor  to  announce  to  you,  as 
clearly  as  we  can,  the  opinion  of  the  Court,  on  the  questions 
of  law  which  have  been  presented  to  us  for  our  considera- 
tion. They  are  new  to  us,  at  least  some  of  them,  and  in- 
volve nice  and  intricate  questions,  and  though  they  have 
been  argued  with  much  ability  on  both  sides,  much  has 
been  left  for  us  in  determining  the  true  line  of  principles 
upon  which  this  case  turns.  We  have,  however,  feeling 
the  importance  of  the  case,  given  to  it  all  the  attention 
our  opportunity  would  afford.  That  the  case  is  an  impor- 
tant one,  has  not  and  we  apprehend  will  not  be  denied. 
It  is  not  only  important  to  the  unfortunate  victim  of  the 


496  SUPERIOR  COURT. 

disaster,  but  it  is  so  to  the  defendants,  and  beyond  the 
present  case,  that  they  may  know  their  responsibility ;  and 
it  is  important  to  the  community  at  large,  that  they  may 
know  the  extent  of  their  risk,  and  of  their  security  and 
personal  safety. 

The  great  advantages  of  this  company,  and  the  conve- 
nience it  affords  the  travelling  community,  which  all  will 
admit,  cannot  be  considered  by  you  in  your  deliberations, 
nor  should  the  fact  of  its  existence  as  a  corporation  influ- 
ence your  verdict  in  any  respect.  But  you  should  give  to 
them  the  same  measure  of  justice,  and  hold  them  to  the 
same  accountability  that  you  would  an  individual  of  the 
community. 

The  first  branch  of  the  defence  denies  that  the  defen- 
dants stood,  in  respect  to  the  plaintiff,  in  the  relation  of 
common  carriers,  and  that,  therefore,  they  are  not  liable 
to  him  for  the  injury  complained  of. 

The  second  branch  is  also  based  on  the  assumption  that 
they  were  not,  in  reference  to  this  particular  transaction, 
within  the  legal  definition  of  common  carriers;  but  that 
the  engagement  with  the  plaintiff  falls  within  the  terms  of 
a  special  contract  or  agreement,  to  carry  the  plaintiff  safely, 
and  that  he  cannot  recover  in  this  form  of  action,  for  a 
breach  of  it,  but  his  remedy  is  in  another  form  of  action. 

These  two  branches  of  the  defence  resolve  themselves 
into  one  and  the  same  principle,  and  the  decision  of  the 
first  will  dispose  of  the  latter. 

We  will,  therefore,  for  the  present,  pass  to  the  remaining 
portions  of  the  defence,  the  first  of  which  is  :  that  the  re- 
lation in  which  the  plaintiff  stood  to  the  defendants,  was 
not  that  of  a  passenger  or  traveller  over  their  road,  but 
that  he  was  in  the  freight  train,  rather  in  the  character  or 
capacity  of  an  employee  or  servant,  to  take  care  of  his 
stock,  and  upon  terms  and  conditions  which  exempted  the 
defendants  from  any  liability  for  the  injury  which  he  re- 
ceived. 

It  is  true,  as  a  general  principle  of  law,  that  the  master 
is  not  liable  to  his  servant  for  injuries  occasioned  by  the 


FLINN  v.  PHIL.  WIL.  &  BALT.  KAILROAD  CO.    497 

negligence  of  his  fellow*  servants,  in  the  course  of  their 
common  employment,  provided  the  latter  be  a  person  of 
competent  care  and  skill;  and  it  is  on  the  principle  that 
when  he  engages  to  serve  a  master,  he  undertakes,  as  be- 
tween him  and  his  master,  to  run  all  the  ordinary  risks  of 
the  service ;  and  this  includes  the  risk  of  negligence  of  his 
fellow  servants,  whenever  he  is  acting  in  discharge  of  his 
duty  as  servant  of  him  who  is  the  common  master  of  both. 
But  we  are  of  opinion,  that  the  relation  of  master  and  ser- 
vant did  not  exist  between  the  plaintiff  and  defendants  in 
reference  to  this  case. 

It  appears  that  he  was  a  drover,  and  that  as  such,  was 
in  the  through  freight  train  for  the  purpose  of  taking  care 
of  his  stock,  which  the  defendants  had  received  on  board 
for  transportation  in  that  train.  It  also  appears  that  it 
was  the  established  practice  and  usage  of  the  company  to 
grant  to  the  owners  of  live  stock,  transported  over  their 
road,  what  is  termed  a  drover's  ticket,  for  the  purpose  of 
taking  care  of  his  stock  and  upon  his  releasing  the  com- 
pany from  any  risk  on  account  of  it,  and  paying  the  rate 
of  freight  charged  under  such  circumstances,  which  ticket 
authorized  such  owner  to  travel  or  pass  in  that  train  with- 
out any  further  fare  or  compensation  than  what  was  in- 
cluded in  the  freight  charged  and  paid  for  the  stock ;  and 
it  also  appears  that  the  rate  of  freight  charged  by  the  com- 
pany on  live  stock,  was  twenty-five  per  cent  higher  when 
neither  the  owner  nor  any  one  on  his  behalf  passed  in  the 
train  for  the  purpose  of  taking  care  of  the  stock.  It  was 
under  such  circumstances,  and  in  accordance  with  this 
practice  and  usage  of  the  company,  as  is  alleged  in  behalf 
of  the  plaintiff,  that  he  was  travelling  on  this  occasion,  and 
at  the  time  when  the  collision  happened  and  the  injury 
complained  of  was  sustained.  If  you  are  satisfied,  gentle- 
men, that  such  was  the  case,  we  say  to  you,  that  in  our 
opinion  it  did  not  constitute  the  relation  of  employer  and 
employee,  or  master  and  servant,  between  the  company 
and  the  plaintiff,  so  as  to  bring  it  within  the  principle  of 
law  which  we  have  before  stated.     On  the  contrary,  if  such 


498  SUPERIOE  COURT. 

was  the  case,  we  think,  whether  he  had  or  had  not  a 
drover's  ticket,  but  had  paid  the  freight  charged  under 
such  circumstances  for  his  stock,  he  was  rightfully  and 
lawfully  a  passenger  on  the  freight  train  from  the  city  of 
Baltimore  to  his  place  of  destination  :  for  we  do  not  con- 
sider it  necessary  under  the  circumstances  that  he  should 
have  had  a  ticket,  and  particularly  if  the  conductor  per- 
mitted him  to  remain  in  the  train,  to  constitute  him  right- 
fully and  lawfully  a  passenger  in  that  freight  train. 

But  it  is  insisted  that  they  did  not  stand  in  the  relation, 
or  sustain  the  obligations  to  the  plaintiff  of  common  car- 
riers of  passengers  for  hire,  because  he  was  in  a  freight 
and  not  a  passenger  train.  And  if  we  correctly  apprehend 
these  grounds,  they  are  as  follows:  that  if  the  plaintiff  was 
even  rightfully  and  lawfully  on  board  the  through  freight 
train  at  the  time  of  the  collision,  he  cannot  recover  in  this 
action,  because,  as  the  defendants  allege  in  the  first  instance, 
they  did  not  stand  in  the  relation  or  sustain  the  obliga- 
tions of  common  carriers  of  passengers  for  hire  in  regard 
to  him,  inasmuch  as  he  was  not  on  a  passenger  train,  or 
train  in  which  they  commonly  carried  passengers ;  and  in 
the  second  place,  because,  as  they  assume,  lie  was  in  the 
freight  train  before  mentioned  under  a  special  undertaking 
by  the  defendants  as  private  carriers  or  ordinary  bailees 
for  hire,  to  carry  him  over  their  road,  on  an  express  con- 
dition that  they  were  not  to  be  liable  for  his  personal 
safety,  and  if  liable  at  all,  were  only  liable  as  private  car- 
riers, under  a  special  undertaking,  in  another  form  of 
action. 

In  the  solution  of  these  questions,  gentlemen,  we  are  ne- 
cessarily led  to  the  inquiry  as  to  what  are  common  car- 
riers. Without  entering  into  a  general  description  or 
definition  of  the  term,  it  will  he  sufficient  for  the  purposes 
of  this  case  to  say  that  they  consist  of  two  classes:  common 
carriers  of  goods,  and  common  carriers  of  passengers  for 
hire;  and  railroad  companies  being  incorporated  by  law 
for  the  transportation  of  persons  and  property,  over  the 
line  of  their  respective  road>  for  hire,  are  common  carriers 


FLLNN  v.  PHIL.  WIL.  &  BALT..  KAILROAD  CO.    499 

of  both  descriptions.  These  are  the  objects  for  which  they 
are  instituted  by  law ;  it  is  their  public  employment,  their 
principal  and  direct  business,  and  not  a  casual  or  occasional 
occupation  with  them,  and  this  beyond  any  doubt  consti- 
tutes them  common  carriers  of  both  descriptions.  It  may 
be  proper  to  say,  however,  that  if  as  a  general  thing  they 
confine  the  transportation  of  goods  to  what  is  called  the 
freight  trains,  and  the  conveyance  of  passengers  to  the  re- 
gular passenger  trains,  they  are  common  carriers  of  goods 
as  to  the  former,  and  of  passengers  as  to  the  latter ;  but 
nevertheless,  if  by  a  passenger  train  they  are  in  the  prac- 
tice of  also  carrying  goods  for  hire,  they  may  become  com- 
mon carriers  of  goods  by  that  train;  and  if  by  any  freight 
train,  they  are  in  the  habit  of  carrying  passengers  for  hire, 
such  as  emigrants  or  drovers,  or  any  other  class  of  traders 
with  their  property,  they  may  also,  as  to  such  persons,  be- 
come common  carriers  of  persons  by  that  train,  as  well  as 
of  such  property  ;  that  is  to  say,  by  such  practice  they  as- 
sume the  obligations  and  liabilities-  of  common  carriers, 
indifferently  both  of  persons  and  property  by  such  trains. 

There  is  a  wide  distinction,  however,  between  the  obli- 
gations which  the  law  imposes  upon  common  carriers  of 
goods  for  hire,  and  common  carriers  of  persons  for  hire. 
Common  carriers  of  goods  are  responsible  for  all  injuries 
thereto,  except  such  as  are  caused  by  the  act  of  God  and 
the  public  enemies,  even  in  the  absence  of  negligence; 
because  the  law  regards  the  former  <is  insurers  against  all 
other  injuries.  But  a  common  carrier  of  passengers  is 
liable  for  injuries  to  the  latter  only  in  cast'  of  his  negli- 
gence. But  the  law  in  its  beneficence  will  not  allow  any 
trilling  with  the  lives  or  personal  safety  of  human  beings, 
and  therefore  exacts  great  care,  diligence  and  skill  from 
those  to  whose  charge,  as  common  carriers  they  are  com- 
mitted; common  carriers  of  passengers  are  responsible  for 
any  negligence  resulting  in  injury  to  them,  and  arc  re- 
quired in  the  preparation,  conduct  and  management  of 
their  means  of  conveyance,  to  exercise  every  degree  of 
care,  diligence,  and   skill    which  a   reasonable  man   would 


500  SUPERIOR  COURT. 

use  under  such  circumstances.  This  obligation  is  imposed 
on  them  as  a  public  duty,  and  by  their  contract,  to  carry 
safely,  as  far  as  human  care  and  foresight  will  reasonably 
admit.  A  railroad  company,  using  as  it  does  the  powerful 
and  dangerous  agency  of  steam,  is  bound  to  provide  skil- 
ful and  careful  servants,  competent  in  every  respect  for 
the  posts  they  are  appointed  to  fill  in  their  service  ;  and  is 
responsible  not  only  for  their  possession  of  such  care  and 
skill,  but  also  for  the  continued  application  of  these  quali- 
ties at  all  times.'  Pierce  on  American  Ilailroad  Law,  4(!9, 
470,  471. 

These  are  the  obligations,  as  we  understand  them,  which 
the  law,  out  of  its  regard  for  the  lives  and  personal  safety 
of  human  beings,  imposes  upon  common  carriers  of  pas- 
sengers for  hire;  but  it  is  argued  and  insisted,  in  behalf  of 
the  defendants,  that  they  did  not,  in  respect  to  the  plaintiff 
in  this  case,  stand  in  the  relation  of  common  carriers  of 
passengers  for  hire;  because,  they  say,  they  never  held 
themselves  out  to  the  public  as  such  on  any  of  their  freight 
trains  passing  from  Baltimore ;  that  they  never  opened 
their  ticket  office  at  the  former  place  for  the  sale  of  tickets 
to  passengers  to  go  by  such  trains,  and  that  by  a  regulation 
of  the  company  their  agents  and  servants  were  prohibited 
from  taking  passengers  on  these  freight  trains,  unless  spe- 
cially authorized  to  do  so  by  the  president  or  general  super- 
intendent of  the  company,  or  other  officers  thereof  having 
power  to  confer  on  'them  such  authority,  and  therefore 
they  say  they  are  not  bound  by  these  obligations  in  the 
present  case;  but  if  liable  at  all,  it  was  on  a  special  under- 
taking to  carry  him  in  a  freight  train,  and  subject  to  a 
general  condition  published  on  their  "  drovers'  tickets," 
and  constituting  one  of  the  regulations  of  the  company, 
that  they  would  not  assume  any  risk  or  responsibility  for 
the  personal  safety  of  such  a  passenger  on  such  a  train. 
But  we  have  already  informed  you,  that  if  you  are  satisfied, 
from  the  evidence  in  the  cause,  that  it  was  the  practice  of 
the  company  to  receive  and  carry  the  owners  of  live  stock 
witli   their   stock  on   such    trains,  upon    their  paying  the; 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    501 

freight  charged  under  such  circumstances,  and  that  the 
plaintiff  had  paid  his  freight  and  was  in  the  train  in  con- 
formity with  that  usage,  then  he  was  there  rightfully  and 
lawfully,  and  the  defendants  and  their  servants  were  bound 
to  exercise  the  same  degree  of  care  and  diligence  in  con- 
veying him  over  their  road,  in  the  train  in  question,  as  we 
have  before  described  as  incumbent  by  law  on  common 
carriers  of  passengers  for  hire  generally,  and  that,  so  far  as 
this  duty  was  concerned,  they  stood  in  a  no  less  responsi- 
ble relation  to  him.  For  in  our  opinion  it  was  inconsistent 
with  the  relation  in  which  they  stood  to  him,  or  would 
have  stood  to  any  similar  passenger  under  the  like  circum- 
stances, and  utterly  at  variance  with  the  duty  which  the 
law,  on  the  ground  of  public  policy,  and  as  the  conservator 
of  the  lives  and  the  personal  safety,  as  well  as  the  property 
of  individuals,  imposes  upon  that,  as  well  as  upon  other 
classes  of  common  carriers  of  persons,  to  allow  of  such  an 
exemption  or  limitation  of  their  responsibility  for  the  per- 
sonal safety  of  their  passengers  against  injuries  resulting 
from  their  own  negligence,  or  the  want  of  due  care  and 
diligence  in  carrying  them.  And  here  we  would  take 
occasion  to  remark  that  this  point  does  not  raise  the  ques- 
tion, which  was  discussed  at  no  inconsiderable  length 
during  the  argument,  and  which  has  so  often  perplexed 
judges,  both  in  this  country  and  in  England,  that  is  to  say, 
whether  it  is  competent  for  a  common  carrier  of  goods  to 
limit  his  responsibility  for  their  safety,  and  which  is  an 
extreme  and  extraordinary  liability,  as  we  have  before  re- 
marked, by  a  general  or  even  a  special  notice  brought 
home  to  the  knowledge  of  the  owner  of  them.  For  that 
question  and  the  cases  in  which  it  has  arisen,  however 
much  it  may  have  been  mooted  and  agitated,  have  never 
been  held  to  apply  to  a  common  carrier  of  persons  for 
hire;  in  regard  to  whom  the  common-law  liability  is  not 
so  extreme,  it  binding  them  only  for  such  injuries  as  result 
from  their  own  negligence.  If,  therefore,  it  is  proved  that 
the  plaintiff  was  in  this  freight  train  of  the  defendants,  as 
before  stated,  that  is  to  say,  in  accordance  with  a  regula- 


502  SUPERIOR  COURT. 

tion  or  practice  of  the  company,  specially  applicable  to 
such  persons,  and  even  if  you  should  be  satisfied  that  he 
had  on  that  occasion  a  drover's  ticket  in  his  possession,  of 
the  description  which  has  been  offered  and  read  in  evi- 
dence, and  consequently  knew  of  the  general  condition 
which  it  contained,  that  no  risk  would  be  assumed  by  the 
company  for  his  personal  safety,  it  would  not  exempt  the 
company  from  their  legal  liability  for  the  injury  which  he 
sustained,  provided  you  should  be  further  satisfied,  when 
you  come  to  review  and  consider  all  the  facts  and  circum- 
stances proved  in  the  cause,  that  the  injury  complained  of 
was  directly  attributable  to  any  negligence  or  want  of  care 
and  diligence  on  the  part  of  the  servants  of  the  defendants 
on  the  occasion.  Because  it  would  be  contrary  to  public 
policy  to  sanction  such  a  limitation  or  exemption  of  the 
responsibility  of  the  company  for  injuries  to  a  person  under 
such  circumstances,  resulting  from  the  negligence  of  their 
servants. 

We  come  now,  gentlemen,  to  the  consideration  of  that 
part  of  the  defence  which  rests  on  the  assumption  that  the 
injury  complained  of  was  the  fault  of  the  plaintiff,  and  not 
attributable  to  the  negligence  or  fault  of  the  defendants. 

It  is  true,  as  a  general  proposition,  as  stated  by  the  de- 
fendants' counsel,  that  if  the  negligence  of  the  plaintiff  was 
the  cause  of  the  injury,  or  if  it  co-operated  with  the  negli- 
gence and  misconduct  of  the  defendants  to  produce  it,  the 
plaintiff  would  not  be  entitled  to  recover,  because  he  could 
not  hold  others  liable  for  the  consequences  of  his  own  ne- 
gligence. But  this  rule  does  not  apply  unless  he  could 
have  avoided  the  injury  by  the  exercise  of  due  care  on  his 
own  part.  If  he  could  not  avoid  it  by  such  care,  the  want 
of  it  would  not  preclude  his  right,  of  recovery. 

This  principle,  however,  is  more  properly  applicable  to 
another  class  of  cases  essentially  different  from  the  one  we 
are  now  considering. 

In  the  case  referred  to  by  the  defendants'  counsel,  the 
injured  party  was  approaching  the  track  and  had  an  unin- 
terrupted view  of  it  in  the  direction  from  which  the  train 


FLINN  v.  PHIL.  WIL.  &  BALT.  KAILROAD  CO.     503 

was  coming,  so  that  he  might  have  seen  it,  had  he  turned 
his  eyes  in  that  direction.  It  was  considered  that  if  the 
plaintiff"  saw  the  train,  it  was  an  act  of  madness  for  him 
voluntarily  to  place  himself  in  its  way,  and  if  he  did  not 
see  it,  it  was  only  because  he  unwisely  allowed  his  atten- 
tion to  be  drawn  in  another  direction.  In  this  case,  which 
we  are  now  considering,  the  fault  which  is  alleged  to  be 
due  to  the  plaintiff',  and  to  which  the  collision  and  conse- 
quent injury  to  the  plaintiff*  are  attributed,  was  in  his  re- 
questing the  defendants  to  delay  the  departure  of  the  train 
at  Baltimore  until  he  could  get  his  stock  on  board.  It  did 
not  necessarily  follow  that  the  detention  of  twenty-five 
minutes,  whether  it  was  for  the  purpose  of  taking  the 
plaintiff's  stock  on  board  or  for  some  other  reason  (and 
the  evidence  is  somewhat  conflicting  on  that  point),  that 
the  injury  resulted  from  it.  But,  gentlemen,  assuming  it 
to  be  true  that  the  delay  of  twenty-five  minutes  at  Balti- 
more was  to  enable  the  plaintiff  to  get  his  stock  on  board, 
whatever  might  be  the  consequences  of  the  delay,  they  are 
not  chargeable  upon  the  plaintiff,  for  he  had  no  power  of 
controlling  the  action  of  the  defendants'  servants;  it  was 
entirely  optional  with  them  whether  they  detained  the 
train  or  left  at  the  regular  and  appointed  time,  and  if  they 
chose  to  wait  till  the  plaintiff's  stock  was  put  on  board  it 
was  their  own  voluntary  act,  and  they  cannot  by  reason  of 
it  exempt  themselves  from  the  liability  which  would  have 
rested  upon  them  had  they  made  their  departure  at  the 
regular  and  appointed  time. 

We  have  now,  gentlemen,  submitted  to  you  our  views 
upon  the  several  questions  of  law  which  are  involved  in 
this  case,  and  it  only  remains  for  you  to  apply  them  to  the 
facts  as  they  have  been  proved  before  you. 

You  cannot  fail  to  perceive,  however,  that  with  the  views 
which  we  have  expressed  in  regard  to  the  questions  of  law 
which  have  been  raised  in  the  trial  of  the  case,  that  it  turns 
in  a  great  measure  on  a  question  of  due  diligence  on  the 
part  of  the  officers  and  servants  of  the  defendants  having 
the  management  of  the  two  freight  trains  on  the  evening 


504  SUPERIOR  COURT. 

of  the  collision.  The  fact  of  collision,  and  that  the  plain- 
tiff was  injured  by  it,  in  the  manner  proved  before  you, 
are  not  disputed,  we  believe.  It  has  been  maintained,  and 
cases  have  been  cited  to  show,  that  where  two  railroad 
trains,  running  on  the  same  road  and  belonging  to  or 
under  the  control  of  the  same  company,  come  in  collision, 
the  law  imputes  negligence  to  the  officers  having  charge 
of  one  or  both  of  the  trains,  as  such  accidents  can  rarely 
occur  if  due  diligence  be  observed  by  such  officers.  This 
renders  it  therefore  necessary  for  a  railroad  company  to 
show,  when  a  collision  occurs  between  two  of  its  trains, 
and  a  suit  is  instituted  by  a  passenger  injured  by  it,  that  it 
was  not  attributable  to  the  negligence  of  its  servants.  But 
this  is  only  a  legal  presumption,  and  is  liable  to  be  rebutted 
by  evidence  to  the  contrary ;  and  if  any  proof  is  adduced 
to  the  contrary,  it  is  the  province  of  the  jury  to  determine 
it,  as  any  other  fact,  from  all  the  evidence  before  them. 

It  will  be  your  duty,  therefore,  gentlemen,  upon  a  view 
of  all  the  facts  and  circumstances  of  the  case,  properly  ap- 
plied by  you  to  the  law  as  we  have  announced  to  you,  to 
determine  the  question  of  liability  on  the  part  of  the  de- 
fendants to  the  plaintiff  for  the  injury  complained  of.  If 
he  was  on  the  train  rightfully  and  lawfully,  as  before 
stated,  and  sustained  the  injury  in  consequence  of  the  col- 
lision, and  you  are  satisfied  that  the  injury  was  the  result 
of  the  negligence  of  the  defendants'  servants  (and  the  ques- 
tion of  negligence  is  one  of  fact  for  you  to  determine),  the 
plaintiff  is  entitled  to  your  verdict  for  sueh  damages  as 
you  in  your  sound  judgment  and  discretion  may  consider 
him  to  have  sustained.  But  if,  on  the  contrary,  you  should 
be  of  opinion  that  they  were  guilty  of  no  negligence,  or 
that  he  was  not  rightfully  and  lawfully  there  in  such  a  re- 
lation to  the  defendants  as  renders  them  liable  to  him  for 
the  injury,  on  the  principle  before  stated,  your  verdict 
should  be  for  the  defendants. 

The  measure  of  damages,  provided  your  verdict  should 
be  for  the  plaintiff,  is  purely  a  question  for  your  conside- 
ration ;  and  we  have  no  disposition,  gentlemen,  if  we  had 


FLINN  v.  PHIL.  WIL.  &  BALT.  RAILROAD  CO.    505 

the  right,  to  invade  your  province  in  this  or  any  other  re- 
spect. 

The  plaintiff  had  a  verdict  for  thirteen  thousand  dollars 
damages. 

The  case  was  afterwards  taken  to  the  Court  of  Errors 
and  Appeals  on  a  bill  of  exceptions  tendered  to  the  charge 
of  the  Court  by  the  defendants,  but  the  same  was  sustained 
and  affirmed  on  all  the  points  ruled  by  the  court  below. 


33 


SUPERIOR   COURT. 

SPRING    SESSIONS. 
1858. 


George  W.  Green  and  others  v.  John  W.  Hall. 

"When  a  contract  is  entered  into  for  an  article  not  then  in  existence,  but 
which  is  afterwards  to  be  made  or  constructed,  it  does  not  become  the 
property  of  the  person  for  whom  it  is  to  be  made,  until  it  is  completed 
and  delivered  to  him,  or  is  at  least  ready  to  be  delivered  to  him  ,  un- 
less it  is  otherwise  specially  provided  in  the  contract.  For  notwith- 
standing this  is  the  general  principle  of  the  common  law  in  such  cases, 
it  is  competent  for  the  parties  by  express  agreement  to  contract  that 
the  article  shall  become  the  property  of  the  purchaser  at  any  particu- 
lar stage  of  the  work  upon  it ;  but  in  the  absence  of  any  such  stipula- 
tion between  them  in  the  contract,  the  general  principle  of  the  com- 
mon law,  as  before  stated,  must  prevail  in  regard  to  the  ownership  of  it. 

A  contract  to  build  the  hull  of  a  sloop  at  a  stipulated  price  per  ton,  to  be 
paid  in  three  equal  instalments  at  specific  stages  of  the  work  as  it  pro- 
gressed, the  builder  to  find  all  the  materials  and  do  all  the  work,  and 
deliver  her  by  a  certain  day  to  the  purchaser  in  Philadelphia,  subject 
to  the  inspection  of  two  persons,  if  required  by  him,  does  not  appropri- 
ate, or  vest  the  property  in  the  vessel  during  the  progress  of  the  work 
in  the  purchaser,  although  he  has  paid  to  the  builder  the  two  first  in- 
stalments at  the  specific  stages  of  the  work  agreed  upon  when  about 
two-thirds  built  ;  but  the  ownership  of  the  vessel  remains  in  the 
builder,  and  may  be  seized  in  execution  and  sold  in  that  condition  as 
his  property  at  the  suit  of  his  judgment  creditors. 

If  abandoned  by  the  builder  after  the  levy  of  the  executions  upon  it,  and 
it  i>  finished  by  the  party  for  whom  it  was  to  be  built,  at  his  own  ex- 
pense, the  measure  of  damages,  in  an  action  by  the  purchasers  at  the 
sale  of  it  upon  the  executions,  to  recover  the  value  of  it  from  him,  will 
be  the  value  of  the  vessel  at  the  time  of  the  levy  of  the  executions 
upon  it. 

This  was  an  action  of  trover  by  the  plaintiffs  to  recover 


GREEN  v.  HALL.  507 

from  the  defendant  the  value  of  the  unfinished  hull  of  a 
sloop  sold  in  the  process  of  its  construction  under  sundry 
executions  levied  upon  it  as  the  property  of  James  IL 
Tubbs,  the  builder,  and  bought  by  the  plaintiffs. 

The  proof  was,  that  Tubbs  had  entered  into  a  contract 
with  Hall,  the  defendant,  on  the  31st  of  August,  1854,  to 
build  the  hull  of  the  sloop  for  him,  of  certain  dimensions, 
and  find  all  materials,  and  deliver  it  complete  in  Philadel- 
phia, by  the  1st  day  of  March,  1855,  to  pass  the  inspection 
of  two  persons,  if  required  by  Hall,  at  the  rate  of  twenty- 
eight  dollars  per  ton,  one-third  to  be  paid  by  him  when 
the  keel,  stem,  sternpost  and  floors  were  laid,  one-third 
when  the  deck-frame  and  decks  were  laid,  and  the  other 
third  when  it  should  be  delivered  in  Philadelphia,  all 
complete  and  according  to  contract.  Tubbs  proceeded 
under  the  contract  to  procure  the  materials  and  to  build 
the  sloop  at  Concord,  in  Sussex  County,  and  whilst  en- 
gaged upon  the  work  and  when  the  hull  was  about  two- 
thirds  finished,  several  executions  were  sued  out  on  judg- 
ments against  him  by  various  parties,  some  of  whom  had 
obtained  judgment  for  timber  and  material  furnished  him 
for  the  purpose,  and  were  levied  upon  it,  and  by  virtue  of 
which  it  was  afterwards  sold  at  public  sale  and  was  bought 
by  the  plaintiffs  as  his  property.  At  the  time  of  the  levy 
of  the  executions,  Hall  had  paid  to  Tubbs,  upon  the  work 
in  the  aggregate,  £951.38,  which  exceeded  the  sum  then 
due  him  by  the  contract  one  hundred  dollars.  On  the 
levy  of  the  executions  upon  the  property  as  his,  Tubbs  noti- 
fied Hall  of  the  fact,  and  at  once  abandoned  the  contract 
and  his  work  upon  the  vessel  and  did  no  more  upon  it. 
Hall  was  present  at  the  sale,  and  gave  notice  to  the  bid- 
ders that  he  claimed  the  property  at  his  own,  by  virtue  of 
the  contract  and  the  payments  he  had  made  under  it;  and 
afterwards,  on  the  formal  demand  of  the  plaintiffs  as  the 
purchasers,  refused  to  deliver  it  to  them,  lie  then  pro- 
ceeded to  procure  materials  and  employ  workmen,  and  to 
complete  the  hull  at  his  own  expense,  and  when  finished 
had  it  taken  to  Philadelphia. 


508  SUPERIOR  COURT. 

C.  M.  Cullen,  for  the  plaintiffs:  When  a  person  makes  or 
constructs  an  article,  he  is  in  law  the  owner  of  it :  this  is 
the  general  principle;  and  when  it  is  built  under  a  contract, 
the  property  continues  in  him  until  it  is  finished  and  de- 
livered. Archb.  N.  P.  597.  In  this  case  the  vessel,  by  the 
terms  of  the  contract,  was  to  be  finished  and  taken  to 
Philadelphia  by  Tubbs,  the  builder,  where  she  was  to  pass 
an  inspection,  if  required,  by  the  defendant,  before  deli- 
very; and  had  not  the  contract  been  abandoned,  and  the 
hull,  in  its  unfinished  condition,  been  relinquished  by 
Tubbs  to  him  on  the  levying  of  the  executions  upon  it,  the 
property  in  it  would  have  continued  in  the  builder  until 
the  delivery  there.  As  it  was,  it  remained  in  him  until 
he  abandoned  his  contract  and  relinquished  the  work, 
after  the  levy  of  the  executions,  to  the  defendant.  Muck- 
low  v.  Mangles,  1  Taunt.  319;  Woods  v.  Russell,  7  Eng.  C. 
L.  R.  310;  Bishop  v.  Cramshay,  10  Eng.  C.  L.  R.  136; 
Atkinson  v.  Bell,  15  Eng.  C.  L.  R.  216 ;  Oldfield  v.  Low, 
17  Eng.  C.  L.  R.  333 ;  Maberley  v.  Shephard,  25  Eng.  C.  L. 
R.  43 ;  Clark  et  al.  v.  Spence,  31  Eng.  C.  L.  R.  107.  In  the 
case  last  cited,  the  work  and  materials  were  to  be  inspected 
and  approved  by  a  superintendent,  and  the  ship  was  to  be 
paid  for  by  instalments,  at  certain  stages  of  the  work,  as 
it  proceeded.  But,  in  the  present  case,  there  was  no  su- 
perintendent provided  for  in  the  contract,  in  which  respect 
it  is  stronger  than  that  case.  The  principle  on  which  we 
rely  is  also  ruled  in  the  case  of  Laidler  v.  Burlinson,  2  Mees. 
£  Welsby,  602,  and  in  the  case  of  Demerritt  v.  Johnson,  7 
Johns,  All,  which  was  almost  identical  in  its  circumstances 
with  'the  case  now  before  the  Court,  except  it  was  not 
quite  as  strong  against  the  defendant,  as  he  furnished  a 
part  of  the  materials  himself  in  that  case;  and  yet  it  was 
held  that  the  sloop  continued  the  property  of  the  builder 
until  it  was  finished  and  delivered.  I  would  also  refer,  in 
further  support  of  the  principle,  to  Johnson  v.  Hunt,  11 
Wend.  137. 

W.  Saulsbury,  for  the  defendant :   We  do  not  mean  to 


GEEEN  v.  HALL.  509 

controvert  the  general  principle  of  law  relied  upon  by  the 
plaintiffs,  that  an  article  contracted  to  be  made  and  de- 
livered to  another,  does  not  become  the  property  of  the 
latter  until  it  is  finished  and  delivered.  But  the  principle 
is  otherwise  in  the  case  of  a  ship,  when  it  is  built  under  a 
special  agreement,  and  is  to  be  paid  for  by  instalments,  at 
specific  stages  of  the  work  as  it  progresses;  and  this  dis- 
tinction rests  on  the  doctrine  of  special  appropriation ;  for 
in  such  a  case  the  ship  becomes  the  property  of  the  person 
for  whom  it  is  to  be  built,  from  the  time  the  keel  is  laid, 
on  the  ground  of  the  special  appropriation  of  it  to  him  by 
the  contract,  which  vests  the  property  in  him  from  that 
moment.  Abb.  on  Ship.  5;  Woods  v.  Russell,  7  Eng.  C.  L. 
R.  310 ;  Clark  el  al.  v.  Spence,  31  Eng.  C.  L.  R.  107 ;  Laid- 
ler  v.  Burlinson,  2  Mees.  £  Wels.  602. 

Now,  had  not  Hall,  the  defendant,  a  right  in  this  case  to 
demand  of  Tubbs,  the  builder,  the  delivery  of  the  specific 
vessel,  on  which  the  two  first  instalments  and  one  hundred 
dollars  of  the  last  had  been  paid  by  him,  although  the  work 
stipulated  to  be  performed,  that  is  to  say,  two-thirds  of  the 
work  upon  her,  had  not  then  been  done  by  him?  It  is  the 
payment  of  the  instalment,  under  such  a  special  contract, 
that  appropriates  and  vests  the  property  in  the  purchaser, 
as  the  work  proceeds  and  the  payments  are  made  at  the 
specified  stages  of  it,  pursuant  to  the  contract.  And  is  not 
this  both  just  and  reasonable  to  all  concerned — to  the  party 
paying,  and  to  the  builder,  who  receives  his  compensation 
for  his  work  and  materials  at  regular  intervals,  according 
as  he  progresses  with  it;  and  to  his  creditors,  who  should 
look  rather  to  the  fruits  of  his  industry,  and  to  the  com- 
pensation thus  received  by  him,  than  to  the  property  of 
another,  for  the  satisfaction  of  their  demands  against  him? 
Has  not  the  party  who  has  progressively  purchased  and 
paid  for  the  ship  in  this  manner,  whilst  the  builder  is  con- 
structing her,  such  an  interest  and  property  in  her,  at  the 
stages  paid  for  according  to  the  contract,  as  the  law  will 
protect  against  all  other  claimants,  and  especially  the  cre- 
ditors of  the  builder,  who  may  rest  entirely  easy  until  she 


510  SUPERIOR  COURT. 

is  nearly  finished  and  as  nearly  paid  for,  and  then  seize  her 
in  execution  for  the  debts  of  the  latter,  as  was  done  in  this 
instance?  It  is  true  that  the  property  of  the  purchaser  in 
the  ship  is  not  completed  and  perfected  by  the  actual  de- 
livery of  her  to  him,  neither  can  it  be  under  the  contract, 
until  she  is  finished.  But  the  completion  of  each  succes- 
sive stage  of  the  work,  and  the  receipt  of  payment  for  it, 
pursuant  to  the  contract,  may  be  considered,  under  the 
circumstances,  as  equivalent  to  a  partial  delivery,  as  far  as 
practicable;  or  as  a  constructive  delivery  of  the  ship,  as  far 
as  built,  to  be  finally  consummated  by  an  actual  delivery 
of  the  whole  when  finished;  and  this  is  the  light  in  which 
the  law  regards  it,  when  it  denominates  it  an  appropriation 
of  the  property  by  the  builder  to  the  purchaser  under  the 
circumstances,  according  to  the  authorities  which  I  have 
cited.  All  the  other  cases  cited  by  the  counsel  for  the 
plaintiff,  with  the  exception  of  Dcmerrit  v.  Johnson,  from 
7  Johns,  472,  have  nothing  to  do  with,  and  do  not  even 
raise  or  involve  this  principle  of  appropriation;  because 
the  work,  in  those  cases,  was  not  to  be  paid  for,  at- stipu- 
lated stages,  by  instalments,  as  it  proceeded,  and  only  affirm 
the  general  principle  of  law,  which  is  not  disputed.  And 
as  to  that  case,  he  would  remark  that  it  was  decided  on 
the  general  principle  referred  to  as  early  as  the  year  1811, 
without  argument,  and  prior  to  the  case  of  Woods  v.  Russell, 
which  was  decided  in  England  in  1822,  and  before  the  dis- 
tinction in  that  case  was  taken  and  ruled  in  that  country, 
and  which  was  afterwards  recognized  and  affirmed  in  the 
cases  of  Clark  et  al.  v.  Spence,  and  Laidler  v.  Burlinson,  which 
I  have  already  cited,  and  upon  the  authority  of  which  we 
contend  that  the  plaintiffs  in  this  case  cannot  recover. 

C.  S.  Layton,  on  the  same  side :  In  this  case,  as  my  col- 
league has  remarked,  Hull  had  entered  into  a  special  agree- 
ment with  Tubbs,  to  build  this  vessel  for  him,  the  latter 
to  be  paid  by  instalments,  at  specified  stages  of  the  work, 
as  it  proceeded  to  completion.  In  good  faith  Tubbs  begun 
the  work,  procuring  the  materials  for  the  purpose,  and  had 


GREEN  v.  HALL.  511 

proceeded  to  nearly  two-thirds  of  the  entire  construction 
of  it;  whilst  Hall,  acting  in  equal  good  faith,  and  relying 
upon  his  interest  and  property  in  her  under  their  contract, 
had  actually  paid  in  the  aggregate  nearly  a  thousand  dol- 
lars under  it,  and  had  overpaid  the  amount  then  due  by 
the  instalments,  as  stipulated  to  be  paid  in  it,  when  certain 
judgment-creditors  of  Tubbs  sue  out  sundry  executions 
against  him,  levy  them  upon  the  unfinished  article  on 
which  he  is  at  the  time  busily  engaged  under  the  contract, 
and  sell  it  at  public  sale  to  the  highest  bidder,  notwith- 
standing the  claims  and  remonstrances  of  Hall,  and  thus 
not  only  arrest  the  builder  in  his  employment,  and  seize 
the  vessel  out  of  his  hands,  but  claim  the  right  to  deprive 
the  purchaser,  Hall,  of  the  benefit  of  ever}-  dollar  which 
he  has  paid  and  advanced  upon  it.  Is  this  just?  Is  it 
fair  ?     Is  it  law  ?     "We  say  it  is  neither. 

The  distinction  is  this :  when  the  vessel  contracted  for 
is  to  be  built  under  a  special  agreement,  and  to  be  paid  for 
by  instalments  as  the  work  proceeds,  and  they  are  promptly 
paid  as  they  fall  due  in  the  progress  of  the  work,  the  ves- 
sel becomes  the  property  of  the  purchaser,  or  the  party  for 
whom  she  is  to  be  built,  as  soon  as  the  first  instalment  is 
paid,  by  what  the  books  term  appropriation  and  accession, 
and  is  vested  in  him.  Bell  on  Contr.  of  Sale,  50  Law  Libr. 
13 ;  Glover  v.  Austin,  6  Pick.  209;  Sunmer  v.  Hamlet,  12  Pick. 
76;  Buterworth  v.  McKinley,  11  Humph.  Pep.  206;  24  Eng. 
C.  L.  P.  220. 

But  if  such  were  not  the  law  of  the  case,  the  defendant 
should  then  certainly  have  a  lien  on  the  specific  article 
under  the  circumstances,  for  the  amount  of  money  which 
he  has  paid  in  good  faith  upon  the  work  as  it  proceeded, 
under  the  contract. 

E.  D.  Cullcn,  for  the  plaintiffs :  By  the  terms  of  the  con- 
tract, the  vessel  was  to  be  completed  and  delivered  to  the 
defendant  in  Philadelphia;  and  until  it  was  delivered  to 
him  pursuant  to  the  terms  of  the  agreement,  he  had,  and 
could  have,  no  property  in  her.     In  all  the  cases  cited  on 


512  SUPERIOR  COURT. 

the  other  side,  it  will  be  found  that  there  was  some  special 
fact  or  circumstance,  which  the  Court  regarded  as  equiva*- 
lent  to  an  actual  delivery  of  the  article.  In  the  case  of 
Woods  v.  liusscll,  the  Court  expressly  relies  on  the  fact, 
that  the  builder  had  furnished  the  party  for  whom  the  ship 
was  built  with  the  necessary  certificate  to  procure  the  en- 
rolment of  her  in  his  name  as  a  finished  vessel,  which  was 
regarded  as  a  constructive  delivery  of  her  by  him  to  the 
purchaser ;  and  in  the  case  of  Clark  ei  al.  v.  Spence,  the 
Court  rests  the  decision  on  the  sole  ground,  that  there  was 
a  superintendent,  on  the  part  of  the  purchaser,  to  inspect 
and  approve  of  the  materials  and  the  work,  in  every  stage 
of  it,  as- it  progressed,  and  which  was  treated  as  a  delivery 
to  him,  and  through  him  to  his  principal,  the  purchaser. 
The  case  in  7  Johns,  decided  in  1811,  is  referred  to  and 
affirmed  in  the  case  of  Johnson  v.  Hunt,  11  Wend.  137, 
which  was  decided  as  late  as  1834.  As  to  the  cases  cited 
on  the  other  side  from  "  Pickering's  Reports,"  they  do  not 
proceed  on  the  principle  of  appropriation,  and  have  no 
bearing  whatever  on  the  question  of  law  involved  in  the 
present  action. 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  This  is  an  ac- 
tion of  trover,  brought  by  the  plaintiffs  to  recover  from  the 
defendant  the  value  of  the  hull  of  a  sloop,  contracted  to 
be  built  for  the  latter  by  James  II.  Tubbs,  to  be  delivered 
to  him  when  completed,  by  a  certain  time,  in  the  city  of 
Philadelphia,  subject  to  inspection  there,  if  the  defendant 
should  require  it.  By  the  terms  of  the  contract,  Hall,  the 
defendant,  was  to  pay  Tubbs,  the  builder,  for  the  work 
at  specific  stages  of  it  by  instalments,  as  it  progressed, 
Tubbs  to  supply  all  materials,  as  well  as  to  do  all  the 
work  at  the  stipulated  price  of  twenty-eight  dollars  per 
ton.  It  is  in  proof  that  the  defendant  had  paid  to  Tubbs 
the  two  first  instalments,  and  one  hundred  dollars  over, 
amounting  to  §051.38,  and  to  one  hundred  dollars  ■  more 
than  the  two-thirds  of  the  whole  price  agreed  to  be  paid 
for  it.     Afterwards,  and  when   the  vessel   had  been  about 


GREEN  v.  HALL.  513 

two-thirds  built,  several  executions  were  sued  out  by  cer- 
tain judgment  creditors  of  Tubbs,  the  builder,  and  were 
levied  on  the  vessel  as  his  property ;  upon  which  Tubbs 
at  once  abandoned  his  work  upon  it,  and  gave  up  the 
vessel  in  her  unfinished  condition  to  the  defendant ;  in 
which  she  was  afterwards  sold  at  public  sale  under  these 
executions  and  levies,  and  was  purchased  by  the  plaintiffs. 
They  then  made  a  formal  demand  .on  the  defendant  for 
the  vessel,  but  he  refused  to  deliver  her  to  them,  claiming 
her  as  his  own  property ;  and  proceeding  to  have  the  work 
upon  her  completed  at  his  own  expense,  he  afterwards 
carried  her  away  and  converted  her  to  his  own  use. 

Upon  this  state  of  facts  it  is  contended  on  the  part  of 
the  plaintiffs,  that  the  vessel  was  the  property  of  Tubbs, 
the  builder,  at  the  time  when  the  executions  were  levied 
on  it ;  whilst  on  the  contrary,  it  is  insisted  upon  the  other 
side,  that  she  was  at  that  time  the  property  of  Hall,  the 
defendant,  by  virtue  of  the  written  contract  which  has 
been  proved  between  them,  and  the  instalments  duly  paid 
by  Hall  to  Tubbs  during  the  progress  of  the  work  upon 
her  up  to  that  time ;  on  the  ground  that  these  instalments 
having  been  paid  pursuant  to  the  agreement  as  the  work 
proceeded,  it  constituted  what  is  termed  an  appropriation 
of  the  vessel  as  the  work  upon  it  progressed,  to  the  defen- 
dant as  his  property.  And  it  is  upon  this  point  the  de- 
cision of  the  case  depends;  for  if  the  principle  of  law  ap- 
plicable to  the  case  under  the  facts  proved,  is  such  as  it 
has  been  stated  to  be  by  the  counsel  for  the  defendant, 
then  the  verdict  should  be  in  his  favor;  but  if  it  is  other- 
wise, then  it  should  be  for  the  plaintiffs. 

The  general  principle  of  the  common  law  on  this  sub- 
ject has  been  correctly  stated,  and  is  admitted  on  both 
sides,  and  that  principle  is  this:  when  a  contract  is  entered 
into  for  an  article  not  then  in  existence,  but  which  is  after- 
wards to  be  made,  or  constructed,  it  docs  not  become  the 
property  of  the  person  for  whom  it  is  to  be  made,  until  it 
is  completed  and  delivered  to  him,  or  is,  at  least,  ready  to 
be   delivered   to  him,  unless   it    is   otherwise  specially  pro- 


514  SUPERIOR  COURT. 

vided  in  the  contract.  Because,  notwithstanding  this  is 
the  general  principle  of  the  common  law  in  such  cases,  it 
is  competent  for  the  parties  to  provide  by  express  agree- 
ment in  their  contract,  that  the  article  shall  become  the 
property  of  the  purchaser  at  any  particular  stage  of  the 
work  upon  it ;  but  in  the  absence  of  any  such  stipulation 
between  them  in  the  contract,  the  general  principle  of  the 
common  law,  as  before  stated,  must  prevail  in  regard  to 
the  ownership  of  it.  But  as  there  is  no  such  provision  or 
stipulation  in  the  contract  proved  in  this  case,  on  the  con- 
trary, it  is  wholly  silent  on  this  point,  and  inasmuch  as  it 
expressly  provides  that  the  hull  of  the  sloop  was  to  be 
finished  and  delivered  by  Tubbs  to  the  defendant  on  or 
before  a  certain  day  in  Philadelphia,  subject  to  the  inspec- 
tion of  two  persons,  if  required  by  the  latter,  we  consider 
and  feel  bound  to  say  to  you  that  the  ownership  of  the 
vessel  and  the  property  in  her  was  in  contemplation  of 
law  in  Tubbs,  the  builder,  at  the  time  when  the  execu- 
tions in  question  were  sued  out  and  levied  upon  her  as 
his  property,  and  that  the  subsequent  sale  of  all  his  right, 
title  and  interest  in  her,  upon  these  executions,  conveyed 
the  legal  title  and  property  in  her  to  the  plaintiffs  as  the 
purchasers,  notwithstanding  the  instalments  paid  and  the 
money  advanced  on  account  of  the  work  up  to  that  time 
by  the  defendant  to  the  builder;  and  that  the  plaintiffs  are 
therefore  entitled  to  recover. 

Several  adjudicated  cases  have  been  cited  by  the  counsel 
for  the  defendant,  to  show  what  has  been  the  ruling  of 
the  courts  in  England  on  the  doctrine  of  appropriation,  as 
it  is  termed,  in  cases  of  this  nature,  or  at  all  events,  some- 
what similar  to  this.  But  without  entering  into  a  parti- 
cular examination  of  these  cases,  some  of  which  appear  to 
rest  on  no  very  satisfactory  or  well-established  principle, 
suffice  it  to  say  that  we  know  of  no  case  in  which  that 
doctrine  has  been  ruled,  or  recognized  in  the  courts  of 
this  country.  On  the  contrary,  the  decisions  here  have 
been  the  other  way;  and  in  the  latest  case  which  appears 
to  have  arisen   in  our  courts,  which  was  the  case  of  An- 


VANGEAZEL  v.  HILL  YARD.  515 

drews  el  al.  v.  Durant  el  al,  1  Kern.  35,  very  recently  de- 
cided in  the  Court  of  Appeals  in  New  York,  the  principle 
of  the  cases  as  ruled  in  England  on  this  question  was  ex- 
pressly repudiated  and  denied  as  law  in  this  country. 

As  the  defendant  was  suffered,  after  the  sale  to  the  plain- 
tiffs, to  proceed  and  finish  and  complete  the  construction 
of  the  hull  of  the  sloop  at  his  own  cost  and  expense, 
should  the  jury  find  for  the  plaintiffs,  the  measure  of  the 
damages  will  be  the  value  of  it  at  the  time  of  the  levy  of 
the  executions  upon  it. 

Verdict  for  the  plaintiffs. 


John  Vangeazel  v.  Robert  Hillyard. 

A  judgment  entered  without  stating  for  whom  it  was  rendered,  aided  and 
sustained  by  reference  to  the  report  of  the  referees  on  which  it  was  ren- 
dered, and  to  the  usual  docket  entry  of  the  names  of  the  parties  on  the 
margin  of  the  record. 

Certiorari.  The  record  contained  an  entry  of  the  names 
of  the  plaintiff  and  defendant  in  the  usual  form.  It  also 
contained,  among  others,  the  following  entry :  The  re- 
ferees appeared  and  were  sworn,  and  after  hearing  the 
allegations  and  proofs  of  the  parties,  report  in  writing  that 
they  find  John  Vangeazel,  the  defendant,  indebted  to  Ro- 
bert Hillyard,  the  plaintiff,  seventy-eight  dollars  and  seven 
cents,  whereupon  I  give  judgment  against  John  Vangeazel, 
the  defendant,  for  $78.07  debt,  and  $1.90  costs  of  suit. 

The  error  assigned  was  that  the  judgment  was  a  nullity, 
as  the  justice  had  not  rendered  judgment  in  favor  of  the 
plaintiff,  nor  entered  the  name  of  the  party  for  whom  it 
was  given,  as  required  by  law. 

l$ut  the  Court  held  that  the  defect  was  aided  and  cured 
by  reference  to  the  report  of  the  referees  on  which  the 


516  SUPERIOR  COURT. 

judgment  was  rendered  and  the  names  of  the  parties  en- 
tered on  the  margin  of  the  record;  and  affirmed  the  judg- 
ment. 


Rachel  Seal  v.  Joshua  T.  Seal  and  Joseph  Seal,  lately 
trading  in  the  name  and  firm  of  J.  T.  Seal  &  Co. 

The  same  Plaintiff  v.  Joshua  T.  Seal. 

Judgments  confessed  upon  a  bond  and  warrant  of  attorney  executed  by 
one  member  of  a  firm  in  the  name  of  the  firm,  first,  against  the  t\v<> 
members  of  the  firm  jointly,  and  afterwards  severally  against  the  mem- 
ber of  the  firm  alone  who  executed  the  bond  and  warrant,  vacated  and 
set  aside;  the  first  judgment,  because  the  warrant  only  authorized  the 
entry  of  a  joint  judgment  against  the  partners,  and  not  binding  both, 
it  could  not  bind  either;  and  as  to  the  second  judgment,  because  it  was 
not  entered  pursuant  to  the  warrant,  which  must  be  executed  strictly. 
A  joint  and  several  bond  entered  jointly  against  two  cannot  afterwards 
be  entered  severally  against  either. 

Kile  to  show  cause  wherefore  two  judgments,  each  for 
the  real  debt  of  81250,  confessed  in  the  Superior  Court 
for  New  Castle  County,  at  the  suit  of  Rachel  Seal,  a  lu- 
natic, by  Mahlon  Betts,  her  trustee,  the  one  against  Joshua 
T.  Seal  and  Joseph  Seal,  lately  trading  in  the  name  and 
firm  of  J.  T.  Seal  &  Co.,  and  the  other  against  Joshua  T. 
Seal  alone,  should  not  be  vacated  and  set  aside.  The  bond 
and  warrant  of  attorney  on  which  the  judgments  were  con- 
fessed, purported  to  have  been  executed  by  the  firm  to 
Rachel  Seal,  and  was  signed  "J.  T.  Seal  &  Co."  It  was 
joint  and  several;  but  the  warrant  of  attorney  was  joint 
only.  Judgment  was  first  confessed  upon  it  at  the  suit 
of  the  plaintiff  by  her  trustee  against  Joshua  T.  Seal  and 
Joseph  Seal,  lately  trading  in  the  name  and  firm  of  J.  T. 
Seal  &  Co.,  and  afterwards,  at  a  subsequent  term,  judg- 
ment was  entered  thereon  against  Joshua  T.  Seal  alone. 


SEAL  v.  SEAL.  517 


James  A.  Bayard,  for  the  plaintiffs  in  the  rule :  Both 
judgments  must  be  set  aside;  because,  in  the  first  place,  I 
take  the  ground  that  a  judgment  cannot  be  entered  seve- 
rally against  one  of  two  obligors  in  a  joint  and  several 
bond,  if  the  warrant  of  attorney  is  joint  only ;  and  if  the 
judgment  is  not  good  against  both,  it  is  not  good  against 
either.  Gee  v.  Lane,  15  East,  592;  Parish  v.  Wilkinson,  8 
T.  P.  153  ;  7  Taunt.  453 ;  18  Eng.  C.  L.  P.  93,  96 ;  52  Eng. 
C.  L.  P.  698.  The  bond  and  warrant  were  executed  by 
Joshua  T.  Seal  alone.  Joseph  Seal's  name  was  not  sub- 
scribed to  it,  and  the  signature  is  in  the  handwriting  of 
Joshua  T.  Seal,  who  alone  executed  it;  and  yet  the  judg- 
ment first  entered  cannot  be  a  valid  judgment  against  him 
individually  by  reason  of  his  signature  to  it,  though  it  is 
genuine,  because  it  does  not  pursue  the  tenor  of  the  war- 
rant, viewed  in  that  light  on  which  it  purports  to  have 
been  entered,  which  was  joint  only,  and  not  joint  and 
several,  and  which,  of  course,  did  not  authorize  the  con- 
fession of  a  judgment  thereon  against  him  singly.  A  war- 
rant of  attorney  is  a  power  which  must  be  executed  stric- 
tisimi  juris,  and  must  be  strictly  followed.  In  regard  to  the 
second  judgment,  I  have  to  say  that  if  a  warrant  of  attor- 
ney, which  is  a  power,  is  once  exercised,  it  is  functus  officio, 
and  can  never  be  exercised  again.  Besides,  the  objection 
which  I  have  taken  to  the  validity  of  the  first  judgment  as 
a  sole  judgment  against  him,  applies  with  equal  force  to  the 
last  judgment  entered  subsequently  and  severally  against 
Joshua  T.  Seal  alone. 

J).  3F.  Bates,  for  the  defendant  in  the  rule :  A  deed  exe- 
cuted by  one  partner  in  the  name  of  the  partnership,  but 
without  the  consent  of  the  other  partner,  is  his  deed, 
though  not  the  deed  of  the  firm.  Col.  on  Partn.A'lb.  And 
he  is  estopped  from  denying  that  it  is  his  deed.  Elliott  v. 
Dans,  -2  Bos.  <f  Pal.  338  :  Lai/ton  ,r  Sipple  v.  Hasting,  2  liter. 
147;  Green  v.  Peaks,  2  Coi/its'  Rep.2i)A.  This  principle  does 
not  rest  so  much  on  the  intention  of  the  partner  who  exe- 
cuted the  deed  as  upon  the  ground  that  it  is  regarded  as  a 


518  SUPERIOR  COURT. 


fraud  on  the  other  partners,  and  therefore  he  shall  be  bound 
by  it  as  his  own  deed.  I  can  perceive  no  distinction  in  this 
respect,  between  a  power,  or  warrant  of  attorney,  and  any 
other  deed. 

In  the  next  place,  throwing  out  of  view  entirely  the 
second  judgment  for  the  present,  what  is  the  effect  of  the 
objection  as  to  the  first  or  joint  judgment?  Although 
irregular  and  voidable  as  against  the  other  member  of  the 
firm,  is  it  not  a  good  and  valid  judgment  as  against  Joshua 
T.  Seal  alone,  who  executed  and  gave  the  bond  ?  A  bond 
and  judgment  may  be  good  as  to  one  and  bad  as  to  an- 
other. In  the  case  of  Mottcaux  v.  St.  Aubin  and  others,  2 
Wm.  Black.  1138,  a  judgment  entered  on  a  joint  warrant 
of  attorney  against  an  infant  and  another,  was  vacated  and 
set  aside  as  against  the  infant  and  sustained  as  to  the  other. 
The  same  thing  has  been  done  in  the  case  of  partners, 
where  there  was  no  objection  on  the  score  of  infancy,  but 
where  it  was  the  same  as  in  the  present  case,  that  is  to  say, 
because  the  bond  and  warrant  were  executed  by  one  part- 
ner in  the  name  and  without  the  knowledge  and  consent 
of  the  other  partners.  Girrard  v.  Vasse,  1  Dallas,  119; 
Great  v.  Beabs,  2  Caincs'  Rep.  254. 

But  if  the  first  judgment  must  be  entirely  vacated  as  a 
nullity,  then  I  maintain  that  the  second  judgment,  entered 
against  Joshua  T.  Seal  alone,  is  good,  and  must  stand.  As 
to  the  execution  of  a  power,  I  understand  the  principle  to 
be  this :  if  the  power  is  once  executed,  it  cannot  be  exer- 
cised or  executed  again ;  but  an  attempt  to  execute  the 
power  has  no  such  effect.  I,  therefore,  do  not  agree  with 
the  counsel  on  the  other  side,  that  a  power  defectively 
executed,  can  never  be  executed  again.  I  find  the  con- 
trary maxim  stated  in  Sug.  on  Powers,  15  Law  Libr.  .'171. 
But  that  is  not  the  question  in  this  case;  for  the  question 
here  is,  could  a  power  which  never  was  executed  at  all 
(which,  I  insist,  was  the  case  in  this  instance,  it'  the  judg- 
ment first  entered  is  an  entire  nullity),  be  properly  and 
validly  exercised  and  executed  at  the  time  when  the  second 
judgment  was  entered?     I  insist  that  it  could;  and,  there- 


SEAL  v.  SEAL.  519 


fore,  if  the  first  must  be  entirely  vacated  and  set  aside,  the 
latter  must  be  preserved  and  sustained. 

Jhmes  A.  Bayard,,  in  reply :  The  counsel  on  the  other 
side  has  argued  the  motion,  as  if  I  were  seeking  to  set 
aside  the  judgments  on  equitable  grounds.  But  such  is 
not  the  case.  I  seek  to  set  them  aside,  because  the  war- 
rant was  a  power,  and  had  to  be  executed  strictly  pursuant 
to  the  power  conferred  by  it,  and  on  the  ground  of  irregu- 
larity. For  if  there  is  irregularity,  the  Court  cannot  cure 
it;  but  the  judgments  must,  for  that  cause,  be  set  aside 
altogether.  In  the  case  cited  on  the  other  side  from  2 
Wm.  Black.  1133,  the  motion  was  not  njgde  on  the  ground 
of  irregularity,  nor  was  such  the  ground  of  the  application 
in  the  cases  cited  from  Dallas  and  Games'  Reports,  which 
were  the  only  cases  produced.  In  the  first  case,  the  appli- 
cation was  to  the  Court  to  strike  the  name  of  an  infant 
from  the  warrant,  on  the  ground  of  imposition.  The  bond 
and  warrant  were  perfectly  regular,  but  the  infant  had 
been  induced  by  imposition  to  execute  them.  When  irre- 
gularity is  the  ground  of  objection,  and  the  warrant  has 
not  been  executed  strictly,  it  cannot  be  corrected,  but  the 
judgment  must  be  set  aside  absolutely. 

By  the  Court:  Both  judgments  must  be  vacated  and  set 
aside.  The  first,  because  the  joint  judgment  against  Joshua 
T.  and  Joseph  Seal  cannot  be  sustained  against  the  latter; 
because  he  neither  executed  the  bond  nor  the  warrant  of 
attorney,  and  because  it  cannot  be  sustained  as  the  judg- 
ment of  the  former,  Joshua  T.  Seal,  alone,  as  a  judgment 
entered  against  him  severally,  by  striking  the  name  of 
Joseph  Seal,  his  partner,  from  it ;  since  the  warrant  ot 
attorney,  which  must  be  executed  strictly,  only  authorized 
the  confession  of  a  joint  judgment  against  both  partners. 
And  this  last  objection  applies  with  equal  force  to  the 
second  judgment,  afterwards  entered  against  Joshua  T. 
Seal  alone.  As  to  the  entry  of  this  latter  judgment,  we 
think  there  is  force  in  the  objection,  that  having  once  con- 


520  SUPERIOR  COURT. 

fessed  judgment  on  the  bond  against  them  jointly,  if  the 
signature  of  the  bond  had  authorized  it  to  be  done  in  this 
instance,  the  warrant  of  attorney  would  have  then  become 
functus  officio.  For  if  there  had  been  no  exception  on  the 
score  that  the  bond  and  warrant  were  in  fact  executed  by 
but  one  of  the  partners,  then  no  subsequent  confession 
could  have  been  entered  upon  it  against  either  of  them ; 
because  a  party  on  a  joint  and  several  bond  and  warrant 
of  attorney  against  two  persons,  cannot  enter  it  jointly 
against  them,  and  afterwards  severally  against  both,  or 
either  of  them. 


Henry  L.  Bonsall  v.  James  McKay. 

In  a  demise  of  lands  or  tenements,  whether  the  renting  be  for  a  year  or  a 
less  time,  or  at  will,  the  landlord  cannot  determine  it  without  giving 
the  tenant  three  months'  notice  in  writing  to  leave. 

If  the  unlawful  eviction  of  the  tenant  from  the  demised  premises  by  the 
landlord,  be  attended  on  his  part  by  circumstances  of  aggravation  and 
the  trespass  be  gross,  the  jury  may  award  the  plaintiff'  exemplary  dam- 
ages. 

Trespass  for  breaking  and  entering  the  close  of  the 
plaintiff  and  turning  him  out  of  the  possession  of  the 
premises. 

The  plaintiff  had  rented  a  house  of  the  defendant  in  the 
city  of  Wilmington  in  May,  1857,  but  whether  for  the 
residue  of  the  year  or  for  a  shorter  time,  did  not  appear 
from  the  evidence ;  and  had  moved  his  family  and  furni- 
ture into  it.  The  defendant  having  afterwards  found  a 
purchaser  for  the  house,  and  entered  into  a  contract  to  sell 
it,  which  was  to  be  executed  by  the  middle  of  August  en- 
suing, called  upon  the  plaintiff  in  July,  and  expressing 
his  surprise  that  he  had  not  yet  got  out  of  the  house,  de- 
manded the  payment  of  the  rent  in  advance,  or  security 
for  it;  and  on  the  failure  of  the  plaintiff  to  comply  with 


BONSALL  v.  McKAY.  521 

the  demand,  he  proceeded  in  a  few  days  afterwards  to  turn 
him  forcibly  out  of  possession,  by  removing  his  goods 
from  the  house  to  the  pavement,  and  locking  the  front 
door  against  him  in  his  absence.  On  the  return  of  the 
plaintiff,  he  had  some  difficulty  in  obtaining  admission 
into  the  house,  but  effecting  an  entrance,  he  ordered  the 
defendant  out  of  it,  and  on  his  refusal  to  go,  he  took  hold 
of  him  to  put  him  out,  which  he  resisted,  when  a  scuffle 
ensu'ed  between  them  until  they  were  separated  by  another 
person.  The  plaintiff  shortly  afterwards  produced  a  roll 
of  large  notes  in  his  hand,  amounting  to  a  hundred  dollars, 
and  offered  to  pay  the  defendant  rent  for  the  premises  for 
a  year  in  advance,  which  he  refused  to  accept,  saying  that 
he  did  not  want  him  to  pay  rent,  but  to  get  out  of  the 
house,  and  that  he  would  never  have  got  into  it  if  he  had 
not  told  him  a  falsehood;  which  the  plaintiff  denied,  but 
in  reply  alleged  tha*  lie  had  been  disappointed  in  getting 
another  house  which  he  preferred  and  had  expected  to  ob- 
tain before  that  time. 

The.  counsel  submitted  the  case  without  argument  to 
the  jury,  subject  to  the  opinion  of  the  Court  on  the  points 
referred  to  in  the  charge. 

The  Court,  Houston,  ./.,  charged  the  jury :  That  any  con- 
tract or  consent,  by  virtue  of  which  one  person  enters  into 
the  possession  of  the  lands  or  tenements  of  another,  under 
an  agreement  to  pay  rent  for  the  same,  was  a  demise,  and 
would  establish  the  relation  of  landlord  and  tenant  between 
them ;  and  where  no  term  or  time  was  expressly  limited 
between  them,  the  demise  or  renting  would  be  construed 
to  be  for  a  year,  except  of  houses  and  lots  usually  let  for  a 
shorter  term.  But  if  in  the  present  cast.'  there  was  a  less 
time  specified  and  agreed  upon  between  the  parties  during 
which  the  renting  of  the  premises  in  question  was  fo  con- 
tinue, it  would  be  a  demise  for  that  time.  The  jury  might 
therefore  find,  if  the  tacts  proved  would  warrant  it,  that 
the  renting  in  this  case  was  for  the  residue  of  the'  year 
from   the  time  the  plaintiff  entered   into  possession  under 

34 


522  SUPERIOR  COURT. 

an  agreement  with  the  defendant  to  pay  rent;  or  they 
might  even  find  that  it  was  only  what  is  termed  in  law  a 
tenancy  at  will,  to  endure  so  long  only  as  it  should  suit  the 
will  and  pleasure  of  the  defendant  to  permit  the  plaintiff 
to  continue  in  possession  as  his  tenant ;  provided  the  jury 
should  be  satisfied  from  the  evidence,  that  such  was  the 
understanding  and  agreement  between  the  parties,  and  the 
plaintiff  was  to  pay  rent  for  the  property  during  the  time 
he  so  occupied  it. 

But  whether,  under  the  facts  proved,  it  was  a  demise  of 
the  premises  for  a  year,  or  a  less  time,  or  at  will,  it  was 
not  competent  for  the  defendant  to  determine  it  without 
previously  serving  at  least  three  months'  notice  in  writing 
upon  the  tenant,  the  plaintiff,  to  leave  and  deliver  up  the 
possession  of  the  premises  to  him  at  the  expiration  of  such 
notice.  For  without  such  notice,  no  landlord  can  proceed, 
even  by  legal  process,  to  recover  the  possession  of  the 
premises  from  the  tenant;  much  less,  to  turn  him  out  of 
possession  by  force  and  violence,  without  process. 

As  to  the  other  point  suggested,  whether  it  is  allowable 
for  the  jury  in  such  a  case,  provided  their  verdict  should 
be  for  the  plaintiff,  to  award  him  damages  beyond  the 
damages  actually  sustained  by  him,  we  can  only  state  the 
rule  to  be,  that  where  there  are  circumstances  of  aggrava- 
tion attending  the  trespass  on  the  part  of  the  defendant, 
and  the  trespass  itself  is  gross,  the  jury  may  in  their  dis- 
cretion award  exemplary  damages,  if  in  their  judgment  the 
circumstances  of  aggravation  are  such  as  to  require  it ;  of 
the  measure  of  which  they  were  the  sole  judges. 


John  W.  Andrews  r.  James  W.  Thompson. 

The  attorney  and  counsel  of  fine  of  the  parties  to  a  suit,  is  not  a  com- 
petent witness  for  him,  although  he  has  since,  by  leave  of  the  Court, 
withdrawn  from  the  suit,  and   is   no   longer  connected  with   the  case  as 


LENDERMAN  v.  LENDERMAN'S  EXECUTOR.  523 

counsel  for  the  party,  as  to  any  fact  which  came  to  his  knowledge 
during  that  connection. 

Rule  to  show  cause,  wherefore  the  report  and  award  of 
referees  in  an  action  referred  out  of  Court,  wherein  James 
"W".  Thompson  was  plaintiff  and  John  W.  Andrews  was 
defendant,  should  not  be  set  aside. 

On  the  hearing  of  the  rule,  the  counsel  for  the  plaintiff 
called  as  a  witness,  and  proposed  to  examine  for  the  pur- 
pose of  invalidating  the  report,  Leonard  E.  Wales,  Esq., 
who  had  been  of  counsel  and  attorney  for  the  plaintiff  in 
the  rule,  at  the  time  of  the  reference  of  the  suit  out  of 
Court,  and  on  the  trial  of  it  before  the  referees,  but  who 
had  afterwards,  by  leave  of  fhe  Court,  withdrawn  from  the 
case.  Objected  to  by  the  counsel  for  the  defendant  as  an 
incompetent  witness,  upon  the  ground  that  he  had  pre- 
viously been  of  counsel  and  attorney  for  the  party  in  the 
case  on  whose  behalf  he  was  now  called. 

On  the  other  side  it  was  insisted,  that  the  witness  no 
longer  having  any  connection  with  the  case  as  counsel, 
there  was  nothing  on  the  score  of  sound  policy  or  in  the 
practice  of  the  Court  to  exclude  his  testimony. 

But  the  Court  held  otherwise,  and  on  both  grounds  re- 
fused his  testimony,  as  to  any  fact  which  came  to  his 
knowledge  during  his  connection  with  the  case  as  the 
attorney  of  one  of  the  parties. 


Sarah  Lenderman  v.  Eli  B.  Talley,  Executor  of  Christ 
topher  Lenderman,  deceased. 

Promissory  notes  made  to  a  married  woman  and  not  reduced  to  posses- 
sion by  the  huaband,  on  his  death  survive  to  the  wife,  and  not  to  his 
executor,  if  she  is  then  living.  And  as  to  the  rights  of  the  wife  by  sur- 
vivorship, in  such  cases,  there  is  no  distinction  between  choses  in  action 
accruing  to  the  wife  before  marriage  and  during  her  coverture. 

This  was  an  amicable  action  docketed  between  the  par- 
ties and  submitted  to  the  Court  on  a  ease  stated. 


524  SUPERIOR  COURT. 

The  defendant,  Eli  B.  Talley,  was  the  executor  of  Chris- 
topher Lendermau,  deceased,  who  left  to  survive  him  his 
widow,  Sarah  Lenderman,  the  plaintiff.  Before  his  death 
and  during  their  marriage  she  was  the  holder  of  several 
promissory  notes  payable  to  her  in  the  usual  form  of  such 
instruments,  for  the  following  sums  respectively :  One  for 
$50,  by  Thomas  Metcalf,  Jr.;  one  for  $145,  by  Samuel  M. 
Talley;  one  for  $60,  by  Samuel  M.  Day;  one  for  $22,  by 
Jacob  Martin,  and  one  for  $30  and  another  for  $12,  by 
John  Hand ;  all  of  which  were  made  and  delivered  to  her 
in  the  lifetime  of  her  husband  and  during  her  coverture, 
and  were  still  held  by  her  due  and  unpaid  at  the  time  of 
his  death.  After  the  death  of  the  husband,  the  defendant, 
under  the  impression  that  he  was  entitled  to  them,  in  vir- 
tue of  his  office  as  his  executor,  requested  the  plaintiff  to 
deliver  the  notes  to  him,  which  she  did,  and  he  thereupon 
proceeded  to  collect  the  respective  sums  due  upon  them, 
as  the  executor  of  the  husband.  The  question  submitted 
for  the  decision  of  the  Court  was,  whether  the  plaintiff  or 
the  defendant  was  entitled  to  sue  upon  said  promissory 
notes  and  to  recover  the  amounts  severally  due  upon  them, 
on  the  facts  above  stated. 

Houston,  «/.,  delivered  the  opinion  of  the  Court. 

Whatever  doubts  may  have  been  at  one  time  entertained 
in  regard  to  the  question  presented' in  this  case,  it  may  now 
be  considered  as  well  settled,  by  recent  decisions  both  in 
this  country  and  in  England,  that  the  plaintiff  is  entitled 
to  recover.  The  general  principle  of  the  law  on  this  sub- 
ject is,  that  choses  in  action  due  the  wife,  and  which  are 
not  reduced  to  his  possession  by  the  husband  during  the 
coverture,  on  his  death  survive  to  the  wife,  if  she  is  then 
living;  and  the  fact  that  the  chose  in  action  accrued  to  the 
wife  during  the  coverture,  constitutes  no  exception  to  this 
general  principle. 

The  question  here  presented  has  been  maturely  con- 
sidered, and  all  the  cases  bearing  upon  it  have  been  care- 
fully reviewed  in  an  able  opinion  of  the  Supreme  Court  of 


LENDERMAN  v.  LENDERMAN'S  EXECUTOR.     525 

Massachusetts,  by  Dewey,  J.,  in  Hayward  v.  Hayxcard,  20 
Pick.  517,  in  which  it  was  held  that  a  distributive  share  of 
an  intestate's  personal  estate,  which  accrued  to  a  married 
woman  during  her  coverture,  and  the  husband  died  with- 
out reducing  it  to  possession,  survived  to  her;  and  that 
there  is  no  distinction  as  to  the  rights  of  the  wife  by  sur- 
vivorship, between  choses  in  action  which  accrue  before 
marriage  and  such  as  accrue  during  her  coverture ;  but  in 
either  case,  if  the  husband  dies  without  reducing  them  to 
possession,  they  survive  to  her.  In  a  case  decided  since 
that  time,  in  England,  it  was  ruled  that  a  promissory  note, 
although  negotiable  and  transferable  according  to  the  cus- 
tom of  merchants,  like  a  bill  of  exchange,  yet  it  is  still  a 
chose  in  action,  and  that  a  promissory  note  given  to  a  wife 
in  the  lifetime  of  her  husband,  and  not  collected  by  him, 
on  his  deatli  survived  to  her.  Gaters  v.  Madeley,  6  Mees.  £ 
Wels.  423.  The  principle  established  in  these  cases  has 
also  been  recognized  and  affirmed,  and  perhaps  extended 
still  further  in  its  effect  and  operation,  by  a  recent  decision 
of  the  Court  of  Errors  and  Appeals  in  our  own  State,  in 
which  it  was  decided  that  a  distributive  share  of  the  per- 
sonal estate  of  an  intestate,  which  accrued  to  a  married 
woman  during  the  lifetime  of  her  husband,  and  which  he 
had  assigned  to  one  of  his  creditors  in  payment  of  a  debt 
which  he  owed  him,  but  not  under  his  seal  and  in  the  pre- 
sence of  two  subscribing  witnesses,  according  to  the  statu- 
tory provision  in  regard  to  assignments,  so  as  to  enable 
and  authorize  the  assignee  to  sue  for  it  in  his  own  name, 
on  the  death  of  the  husband  before  the  assignee  had  col- 
lected it,  survived  to  the  wife  notwithstanding  the  assign- 
ment. The.  State,  for  the  >/.>r  of  Vickers,  v.  Robertson  J*  Bar- 
ton, 5  llarr.  201. 

It  is  therefore  the  opinion  of  the  Court  that  the  several 
promissory  notes  referred  to  in  the  ease  stated,  with  the 
respective  sums  of  money  due  thereon,  survived  to  the 
wile  on  the  death  of  the  husband,  and  that  she,  and  not 
the  executor  of  the  husband,  was  the  only  party  who  could 
rightfully  sue  for  and  recover  them.  Judgment  is  accord- 
ingly directed  to  be  entered  for  the  plaintiff. 


526  SUPERIOR  COURT. 


Richard  Humphries  v.  Benjamin  Kitchens. 

When  stay  of  execution  has  been  granted  for  six  months,  on  the  applica- 
tion of  the  defendant  in  a  judgment  before  a  justice  of  the  peace,  upon 
the  ground  that  he  is  a  freeholder,  it  is  not  necessary  that  the  plaintiff 
should  make  his  affidavit  within  live  days  thereafter,  that  he  is  in 
danger  of  losing  the  benefit  of  his  judgment,  in  order  to  obtain  execu- 
tion, but  the  same  may  be  made  at  any  time  within  the  six  months. 

Certiorari  to  Justice  Veach.  Judgment  was  rendered 
on  the  25th  day  of  September,  and  on  the  same  day,  upon 
the  application  of  the  defendant,  who  was  a  freeholder,  stay 
of  execution  was  granted  and  entered  for  six  months.  On 
the  sixth  day  of  October  following,  the  plaintiff  appeared 
and  made  affidavit  before  the  justice,  that  if  the  stay  of 
execution  was  allowed,  the  sum  due  by  the  judgment 
would  be  lost,  on  which  execution  was  issued. 

The  error  assigned  was,  that  the  affidavit  of  the  plaintiff 
should  have  been  made  within  five  days  after  the  stay  of 
execution  had  been  granted  on  the  freehold  of  the  de- 
fendant, and  that  it  had  been  issued  illegally. 

But  the  Court  held  otherwise,  and  that  under  the  act, 
the  affidavit  in  such  case  may  be  made  at  any  time  within 
the  six  months  after  the  stay  of  execution  granted. 

Judgment  for  defendant. 


Theodore  II.  Bishop  v.  James  Carpenter. 

"When  a  summons  is  issued  by  a  justice  of  the  peace,  returnable  forth- 
with, on  the  representation  of  the  plaintiff,  that  he  is  in  danger  of 
losing  the  benefit  of  the  process  by  delay,  the  representation  should  be 
supported  by  the  oath  or  affirmation  of  the  party  ;  but  if  the  defendant 
appears  and  goes  into  trial  without  excepting  to  it,  the  objection  is 
waived,  and  the  defect  cured. 

Certiorari  to  Justice  Silver.      It  appeared  from    the 


WALTEES  v.  MOEEOW.  527 

record,  that  the  summons  was  issued  returnable  forthwith, 
on  the  "  representation  of  the  plaintiff,  that  he  believed  he 
would  lose  the  benefit  of  the  process  by  delay."  The  pro- 
cess was  served  and  returned  the  same  day ;  the  parties 
appeared,  and  being  ready  for  trial,  after  hearing  the  evi- 
dence in  the  case,  judgment  was  rendered  for  the  plaintiff 
below. 

The  error  assigned  was,  that  the  summons  had  been 
issued  returnable  forthwith,  on  the  representation  merely 
of  the  plaintiff',  that  he  believed  that  he  would  lose  the 
benefit  of  the  process  by  delay,  without  the  oath  or  affir- 
mation of  the  party,  and  without  the  justice  being  other- 
wise satisfied  that  such  was  the  case. 

The  Court  held  that  the  act  requires  that  the  represen- 
tation of  the  plaintiff  should  have  been  supported  by  his 
oath  or  affirmation,  or  that  it  should  appear  by  the  record 
that  the  justice  was  otherwise  satisfied  that  such  was  the 
fact;  but  that  the  objection  was  waived  and  the  defect 
cured  by  the  appearance  of  the  defendant  below  and  going 
to  trial,  without  excepting  to  it. 


Jacob  Walters,   defendant   below,  Appellant,  v.  Joseph 
Morrow,  plaintiff  below,  Respondent. 

Articles  of  agreement  under  seal  between  the  stepfather  and  mother  of  a 
minor  and  a  coachsmith,  by  which  the  former  placed  the  minor  with 
the  latter  to  learn  the  art,  trade  and  mystery  of  coachsmithing,  after 
the  manner  of  an  apprentice,  and  covenanted  that  he  should  stay  with 
the  latter  until  he  arrived  at  the  age  of  twenty-one  years,  and  serve  him 
faithfully  after  the  manner  of  an  apprentice,  and  not  absent  himself 
from  his  employ  without  his  consent,  the  latter  covenanting  on  his 
part  to  use  his  best  endeavors  to  teach,  or  cause  the  minor  to  be  taught 
the  said  art  and  trade  of  coachsmithing,  and  to  pay  the  parents  whilst 
the 'minor  should  remain  witli  him,  thirty  dollars  per  annum,  quarterly, 
for  his  clothing,  and  to  allow  them  for  his  boarding,  washing,  and  mend- 
ing, the  sum  of  $2.25,  weekly,  during  said  term,  the  first  year's  boarding, 
amounting  to  $117,  to  remain  in  the  hands  of  the  latter  until  the  end  of 


528  SUPERIOR  COURT. 

the  term,  when  if  he  served  out  his  time  until  of  age  faithfully,  as  a 
good  and  faithful  apprentice  ought  to  do,  the  same  was  to  be  paid  to 
the  parents,  or  the  survivor  of  them,  or  if  neither  of  them  should  then 
be  living,  to  the  son  himself,  are  not  void  as  contravening  either  the 
letter  or  policy  of  the  statute  in  regard  to  the  indenturing  of  appren- 
tices and  servants.  Such  a  contract  is  nothing  more  than  a  private 
agreement  inter  partes,  adopted  as  a  substitution  for  a  formal  inden- 
ture of  apprenticeship,  and  is  to  be  construed  like  any  other  contract  in 
writing  between  parties,  according  to  its  sense  and  meaning  as  the 
same  is  to  be  derived  from  the  terms  employed  in  it  and  collected  from 
the  whole  instrument,  and  must  have  a  reasonable  construction,  so 
as  to  carry  out  the  objects  and  intention  of  the  parties  at  the  time  of 
entering  into  it.  That  all  the  parties  having  their  residence  in  Wil- 
mington at  the  time  when  the  agreement  was  entered  into,  and  the 
minor  living,  boarding  and  lodging  in  the  family  of  his  parents,  it 
was  but  fair  to  presume,  in  the  absence  of  any  stipulation  in  regard  to 
a  change  of  residence,  or  removal  from  the  State  in  the  meantime  by 
either  party,  that  it  was  their  expectation  and  understanding,  that  the 
minor  was  to  continue  in  the  family  of  his  parents,  or  at  least,  under 
their  personal  care,  supervision,  and  control,  and  serve  out  the  term 
of  his  minority,  without  any  change  of  residence,  or  removal  from  the 
State  ;  and  that  it  was  therefore  but  a  reasonable  construction  of  the 
contract  to  conclude  that  such  was  the  design  and  intention  of  the 
parties  when  it  was  entered  into  between  them  ;  and  that  the  latter 
having  in  the  meanwhile  removed  from  the  State,  had  no  right  to  in- 
sist on  removing  the  minor  with  him,  without  the  consent  of  his  pa- 
rents ;  and  having  by  so  doing  put  it  alike  out  of  his  own  power  and 
the  power  of  the  other  parties  to  perform  their  respective  covenants 
according  to  their  intention  at  the  time  of  entering  into  them,  although 
he  was  willing  to  take  the  minor  with  him  and  teach  him  the  trade 
out  of  the  State,  he  had  committed  a  breach  of  the  agreement,  and  was 
liable  to  the  other  r&rty  in  damages. 

This  was  an  action  of  covenant  on  articles  of  agreement 
under  seal,  between  Joseph  Morrow  and  Ann  Morrow  his 
wife,  of  the  one  part,  and  Jacob  Walters  of  the  other  part, 
and  came  up  on  appeal  from  the  judgment  of  a  justice  of 
the  peace,  in  which  Joseph  Morrow  alone  was  plaintiff, 
and  Walters  was  defendant.  The  counsel  now  made  a 
case  stated  of  it,  and  submitted  the  facts  to  the  Court  in 
the  nature  of  a  special  verdict. 

The  articles  of  agreement  were  as  follows  :  Ann  Mor- 
row had  a  son  by  her  former  husband,  named  Richard 
Jackson,  aged  sixteen  years  on  the  2:M  day  of  October, 


WALTERS  v.  MORROW.  529 

1854,  whom  the  said  Joseph  Morrow  and  Ann  his  wife 
placed  with  the  said  Jacob  Walters,  on  the  1st  day  of 
April,  1855,  to  learn  the  art  and  trade  of  coachsmithing, 
after  the  manner  of  an  apprentice.  The  said  Richard  to 
stay  with  the  said  Walters,  and  serve  him  faithfully  after 
the  manner  of  an  apprentice,  and  not  absent  himself  from 
said  Walters's  employ  "without  his  consent,  until  he  should 
arrive  to  the  age  of  twenty-one  years.  Walters  to  pay 
Morrow  and  wife,  whilst  he  so  remained  in  his  employ- 
ment, thirty  dollars  per  annum,  payable  quarterly,  for 
clothing,  &c.  Walters  to  allow  Morrow  and  wife,  for  his 
boarding,. washing,  and  mending,  two  dollars  and  a  quar- 
ter per  week,  during  said  term  ;  the  first  year's  boarding 
to  remain  in  the  hands  of  Walters  (say  $117)  until  the 
end  of  said  term,  when  if  he  served  out  his  term  until  he 
should  arrive  to  the  age  of  twenty-one  years,  faithfully,  as 
a  good  and  dutiful  apprentice  ought  to  do,  Walters  was  to 
pay  to  the  said  Joseph  Morrow  and  Ann  his  wife,  or  to 
the  survivor  of  them,  or  if  neither  of  them  should  theu  be 
living,  then  to  the  said  Richard  himself,  the  said  sum  of 
$117,  aforesaid;  otherwise  the  same  to  be  forfeited  to  the 
said  Walters,  and  to  be  retained  by  him  as  liquidated 
damages  therefor;  and  at  the  end  of  the  first  year  the 
said  Walters  agreed  to  give  security  for  the  said  first  year's 
boarding,  to  be  paid  upon  the  fulfilment  of  the  conditions 
aforesaid,  at  the  end  of  said  term.  And  it  was  further 
agreed  between  the  said  parties,  that  in  case  of  the  sick- 
ness of  said  Richard  in  the  meanwhile,  Walters  should  pay 
his  board  and  yearly  allowance,  and  the  parties  of  the  first 
part  should  pay  for  his  nursing  and  his  doctor's  bills. 
And  the  said  Walters  agreed  to  use  the  best  of  his  endea- 
vors to  teach,  or  cause  to  be  taught,  said  apprentice  the 
art,  trade  and  mystery  of  coachsmithing  as  aforesaid;  the 
said  Richard  Jackson  obeying  all  lawful  commands  of 
said  Walters,  and  not  absenting  himself  from  his  employ 
without  his  permission. 

lender  the   said   agreement,   the   said  Richard  Jackson 
entered  into  the  service  of  the  said  Walters  on  the  1st  day 


530  SUPERIOR  COURT. 

of  April,  1855,  and  continued  to  work  for  and  serve  him, 
according  to  the  terms  and  conditions  of  it,  until  the  1st 
day  of  December,  1856,  and  was  ready  and  willing  to  re- 
main with  and  serve  him  until  he  should  attain  his  majo- 
rity; but  on  or  about  the  time  last  mentioned,  the  said 
Walters  removed  his  business  out  of  the  State  to  the  city 
of  Baltimore,  in  the  State  of  Maryland.  lie  offered,  how- 
ever, to  take  the  said  Richard  with  him  to  the  latter  place, 
to  which  he  had  removed  his  said  business  of  coachsmith- 
ing,  and  where  he  has  ever  since  continued  to  carry  on  the 
same,  of  which  the  said  Richard  and  the  said  Morrow  had 
due  notice ;  but  the  said  Richard  had  refused  to  accompany 
and  go  with  him  to  the  city  of  Baltimore,  although  re- 
quested by  him  to  do  so;  and  that  the  said  "Walters,  up  to 
the  said  1st  day  of  December,  1856,  had  complied  with  all 
the  covenants  which  by  the  terms  of  the  said  agreement 
were  to  be  performed  on  his  part,  and  has  been  ready  and 
willing  to  perform,  in  the  city  of  Baltimore,  all  the  remain- 
ing stipulations  thereof  to  be  performed  by  him.  And  that 
the  said  Richard  boarded  and  lodged  with  the  said  Mor- 
row and  his  wife,  from  the  1st  day  of  April,  1855,  to  the 
1st  day  of  December,  1856;  but  the  said  Walters  had  re- 
fused to  pay  the  said  Morrow  the  sum  agreed  upon  for  his 
board  and  lodging,  for  the  first  year  of  his  said  service. 
If  the  Court  should  be  of  opinion  that  the  plaintiff  below 
was  entitled  to  recover  for  the  said  board  and  lodging  of 
the  said  Richard,  for  the  first  year  of  his  said  service,  from 
the  defendant  below,  then  judgment  to  be  entered  for  $82, 
with  interest  from  the  8th  day  of  December,  1856,  and 
costs;  otherwise  judgment  to  be  rendered  for  the  defen- 
dant below. 

L.  E.  Wales,  for  the  plaintiff:  The  contract  of  the  parties 
was  rescinded  by  the  removal  of  the  defendant.  All  the 
parties  concerned  resided  in  the  city  of  Wilmington  when 
the  articles  of  agreement  were  entered  into,  and  it  was 
their  expectation  and  intention  that  the  covenants  contained 
in  them  should  be  performed  in  the  State.     The  language 


WALTERS  v.  MORROW.  531 

employed  and  the  acts  of  the  parties  show  conclusively 
that  such  was  their  intention.  In  the  first  place,  the  cap- 
tion of  the  agreement,  which  recites  that  it  is  made  between 
the  parties  of  the  first  part,  of  the  city  of  Wilmington,  and 
the  party  of  the  second  part  of  the  same  place,  shows  that 
they  each  had  then  a  fixed  residence  there,  and  indicates 
that  it  was  their  understanding  that  the  contract  was  to  be. 
performed  in  the  State.  But  further ;  the  boy  was  placed 
with  the  defendant  to  learn  the  trade  of  coachsmithing, 
after  the  manner  of  an  apprentice — that  ia  to  say,  an  in- 
dentured apprentice — and  was  to  serve  the  defendant  faith- 
fully, after  the  manner  of  an  apprentice;  aud  by  another 
stipulation  the  defendant  agreed  to  teach  "  the  said  appren- 
tice" the  art,  trade,  &c.  The  boy  was,  therefore,  considered 
in  the  light  or  character  of  an  indentured  apprentice,  al- 
though not  formally  so  according  to  the  statute,  in  relation 
to  the  manner  of  his  service,  and  the  place  where  his  ser- 
vices as  such  were  to  be  rendered;  and  it  is  a  rule  of  legal 
construction,  that  covenants  shall  be  so  expounded  as  to 
carry  into  effect  the  intention  of  the  parties.  Piatt  on  Cov. 
136.  The  agreement  must  also  be  construed  with  refer- 
ence to  the  provisions  of  the  statute  on  the  subject  of 
masters  and  apprentices,  otherwise  the  phrases,  "  after  the 
manner  of  an  apprentice,"  and  the  "said  apprentice,"  can 
have  no  definite  meaning.  But  the  construction  contended 
for  on  the  other  side,  whilst  it  would  give  the  defendant 
greater  rights  and  privileges  as  a  master  than  the  law 
allows,  it  would  abridge  the  legal  rights  of  the  boy  as  an 
apprentice;  for  the  statute  forbids  and  prohibits  the  master 
from  taking  a  legally  and  formally  indentured  apprentice 
out  of  the  State,  except  in  the  special  cases  and  in  the 
mode  provided  for  in  it.  Rev.  Code,  247.  But  if  this  is  not 
the  proper  construction,  then  the  articles  of  agreement  are 
void,  because  it  is  a  binding  of  an  apprentice  not  in  con- 
formity with  the  mode  prescribed  and  required  by  the  law, 
and  because  it  is  an  evasion,  or  an  attempt  to  contravene 
the  provisions  of  a  legislative  enactment.  Piatt  on  Cor.  581. 


532  SUPERIOR  COURT. 

McCaulley,  for  the  defendant:  It  is  necessary  for  a  cor- 
rect understanding  of  this  case,  that  the  character  and 
effect  of  the  articles  of  agreement  should  be  clearly  ascer- 
tained. That  this  agreement  effected  a  binding  of  the 
minor  in  conformity  with  the  provisions  of  the  statute,  in 
regard  to  apprentices  and  servants,  cannot  be  seriously 
maintained.  It  contains  no  stipulations  for  the  education 
of  the  minor,  nor  for  his  direct  support  and  clothing,  nor 
for  his  freedom  dues;  nor  does  the  approbation  of  a  justice 
of  the  peace  appear  to  have  been  obtained.  It  is,  there- 
fore, deficient  in  almost  every  essential  ingredient  of  a  valid 
indenture  of  apprenticeship.  One  objection  taken  on  the 
other  side,  however,  is  that  it  is  void  for  this  reason,  and 
because  by  the  terms  of  the  agreement  the  minor  was  to 
serve  the  defendant  after  the  manner  of  an  apprentice; 
and  the  latter  is  to  teach  the  said  apprentice  the  art,  trade, 
and  mystery  of  coaehsmithing.  For  these  clauses,  it  is 
contended,  have  no  definite  meaning  without  the  aid  of  the 
statute,  to  which  reference  must  be  had.  But  to  this  it 
may  be  answered,  that  the  term  apprentice  applied  to  the 
minor  in  the  articles  of  agreement  is  susceptible  of  two 
meanings.  Its  derivative  and  literal  signification  imports 
any  one  learning,  or  gaining  elementary  knowledge  in 
any  science  or  art,  whilst  with  us  its  most  usual  applica- 
tion is  to  a  minor  bound  to  service  under  the  forms  of  law. 
In  the  present  instance  it  may  have  been  employed  in  the 
former  sense,  and  not  with  the  understanding  that  the 
relation  in  which  he  stood  to  the  defendant  was  to  impose 
upon  him  the  labors  and  responsibilities,  and  what  has  too 
often  proved  the  galling  servitude  of  an  indentured  ap- 
prentice. As  to  the  terms,  that,  lie  was  to  serve  the  defen- 
dant faithfully  after  the  manner  of  an  apprentice,  they 
negative  the  idea  that  he  was  to  be  considered  as  his  actual 
apprentice,  since  if  such  had  been  the  intention  of  the 
parties,  they  would  have  made  him  such  at  once  according 
to  the  forms  of  the  statute,  without  resorting  to  this  e<|ui- 
vocal  method  of  making  him  so  substantially,  although  not 
so  formally.     But  to  show  that  the  boy  Richard  Jackson 


WALTERS  v.  MORROW.  533 

was  not  an  apprentice  in  any  such  sense  as  has  been  con- 
tended for  on  the  other  side,  it  is  only  necessary  to  observe 
that  he  was  not  himself  bound  by  any  of  the  stipulations 
contained  in  the  agreement,  nor  was  he  charged  with  the 
performance  of  any  of  its  covenants.  The  contract,  pro- 
prio  vigore,  conveyed  to  him  no  benefits,  and  imposed  upon 
him  no  obligations ;  and  so  far  as  he  was  individually  con- 
cerned, his  compliance  with  its  terms  and  conditions  was 
entirely  optional  and  voluntary  on  his  part.  If  such  had 
been  the  understanding  and  design  of  the  parties,  instead 
of  resorting  to  this  method  of  accomplishing  their  pur- 
poses, they  would  have  at  once  adopted  the  usual  mode  of 
binding  the  minor  by  a  public  and  official  act,  instead  of  a 
private  agreement  between  the  parties ;  that  is  to  say,  by 
a  regular  and  authenticated  indenture  of  apprenticeship, 
as  prescribed  by  the  statute. 

This  agreement  therefore  is  nothing  more  than  a  mere 
private  contract  between  the  parties  to  it,  and  is  to  be  in- 
terpreted and  construed  like  any  other  contract  of  that  na- 
ture, according  to  the  rules  and  principles  of  the  common 
law  applicable  to  such  cases,  and  without  any  reference 
whatever  to  the  provisions  of  the  statute  referred  to.  It 
was'  made  without  reference  to  the  statute,  and  must  be 
construed  without  any  aid  or  qualification  derived  from  it. 
Covenants  are  to  be  so  expounded  as  to  carry  into  effect 
the  intention  of  the  parties,  and  this  intention  is  not  to  be 
collected  from  the  language  of  a  single  clause,  but  the  ex- 
position must  be  upon  the  whole  instrument.  Piatt  on  Cov. 
136.  Applying  this  rule  in  the  present  case  and  carefully 
reviewing  the  articles  of  agreement,  where  do  we  find  in 
any  of  its  terms,  taken  cither  separately  or  collectively,  any 
sanction  or  warrant  for  the  objection  raised  on  the  other 
side,  that  the  contract  was  rescinded  by  the  removal  of  the 
defendant  and  the  change  of  his  place  of  business  from 
Wilmington  to  Baltimore,  notwithstanding  his  readiness 
and  willingness  to  meet  all  the  obligations  imposed  upon 
him  by  the  agreement,  is  admitted.  The  argument  on 
this   point,  however,  proves   too   much  ;    for,  if  sound,  it 


534  SUPERIOR  COURT. 

would  more  properly  confine  and  restrict  the  entire  per- 
formance of  the  contract  on  both  sides  to  the  city  of  "Wil- 
mington than  to  the  limits  of  the  State.  But  what  is  there 
in  the  contract,  either  to  warrant  or  require  such  a  con- 
struction as  this  ?  If  such  was  the  intention  of  the  parties, 
why  was  it  not  so  expressed  in  the  articles  of  agreement  ? 
It  is  general  and  not  special,  or  limited  as  to  the  place  of 
its  performance,  and  if  it  was  intended  by  the  parties  to 
be  otherwise,  it  was  clearly  necessary  and  incumbent  upon 
them  that  they  should  have  so  expressed  and  agreed  upon 
it  between  themselves;  As  they  have  not  done  so,  such  a 
construction  cannot  be  supplied  by  conjecture,  or  implica- 
tion merely ;  for  on  this  point  the  contract  must  speak  for 
itself,  and  on  this  point  it  is  wholly  silent  and  says  nothing. 
It  will  not  do  to  say  that  the  point  was  overlooked,  for  such 
an  inadvertence  would  not  exempt  either  party  from  their 
legal  obligations  and  responsibilities  under  the  express 
terms  of  the  contract.  Chit,  on  Conir.  567;  Atkinson  v.  Rit- 
chie, 10  East,  533 ;  Hadley  v.  Clark,  8  T.  B.  259.  One  is  dis- 
charged from  his  own  agreement  by  any  act  of  the  other 
party  which  renders  it  impossible  for  him  to  perform  his 
engagement.  Chit,  on  Contr.  570.  It  must  be  impossibility, 
not  difficulty  merely,  that  will  exonerate  such  a  party  from 
performance  on  his  part.  Add.  on  Contr.  342 ;  Piatt  on  Gov. 
594. 

There  is  nothing  in  the  objection  that  the  agreement  is 
void  under  the  statute  in  relation  to  apprentices  and  ser- 
vants. Because  such  a  contract  as  this,  made  between  par- 
ties competent  and  willing  to  contract  about  a  matter  which 
is  neither  discouraged  nor  prohibited  by  statute,  is  valid 
and  binding  on  the  parties  everywhere.  It  does  not  con- 
travene any  provision  of  the  statute  in  question,  and  does 
not  attempt  to  evade  the  law,  for  there  is  no  secrecy,  fraud, 
or  vice  in  it,  as  evasion  implies.  It  is  therefore  valid  and 
must  be  so  considered  by  the  Court. 

I j.  E.  Wales,  in  reply :  It  is  admitted,  by  implication 
at  least,  on  the  other  side,  that  if  it  was  the  intention  of 


WALTERS  v.  MORROW.  535 

the  parties  to  the  agreement  that  it  should  be  executed 
here,  it  was  rescinded  by  the  removal  of  the  defendant 
from  the  State.  The  question  therefore  is  as  to  the  inten- 
tion of  the  parties  on  this  point,  which  I  admit  is  to  be 
gathered  from  the  whole  contract.  But  I  contend  that  the 
usual  meaning  and  common  acceptation  of  the  terms  em- 
ployed, must  be  adopted  in  the  interpretation  of  it,  and 
when  the  expressions  used — such  as  to  "  stay  with  the  said 
Walters  until  he  arrives  to  the  age  of  twenty-one  years," 
and  "  to  serve  him  after  the  manner  of  an  apprentice,"  "as 
a  good  and  dutiful  apprentice  ought  to  do,"  &c. — have  a 
relative  signification,  as  in  this  case,  to  something  else; 
they  must  be  so  understood  and  interpreted  in  the  con- 
struction of  the  contract  and  in  determining  the  meaning 
of  the  parties  to  it.  And  it  was  for  this  reason  I  contended 
in  my  opening  that  this  contract  could  not  be  correctly  ex- 
pounded, or  any  definite  meaning  assigned  to  several  of 
the  most  important  and  significant  phrases  employed  in  it, 
without  referring  to  the  statute  before  cited  in  regard  to 
apprentices  and  servants.  Such  being  the  case,  what  then 
do  these  phrases  import  on  the  question  now  before  the 
Court  ?  Do  they  not  clearly  signify  that  in  this,  as  in  all 
other  respects,  the  said  minor  was  to  serve  the  said  Wal- 
ters, and  to  be  taught  by  him  the  trade  referred  to  as  an 
apprentice  ?  But  what  kind  of  an  apprentice  ?  Why, 
clearly,  a  regularly  indentured  apprentice,  according  to 
the  forms  of  the  statute.  For  if  it  does  not  mean  that, 
it  means  nothing;  and  it  must  have  been  well  known  to 
the  parties  that  according  to  custom  and  usage,  as  well  as 
by  a  positive  provision  of  the  statute  thus  referred  to,  the 
service  of  an  apprentice  is  restricted  to  the  State,  and  such 
must  have  been  their  understanding  and  intention,  though 
not  expressed,  with  reference  to  the  service  of  this  boy  after 
the  manner  of  an  apprentice,  or  as  an  apprentice,  in  other 
words,  when  this  agreement  was  entered  into  between 
them.  It  cannot  be  supposed  that  either  of  the  parties  at 
that  time  contemplated  or  designed  that  he  was  to  be  taken 
out  of  the  State  to  a  distant  city,  among  entire  strangers 


536  SUPERIOR  COURT. 

and  far  away  from  the  home  and  residence  of  his  parents ; 
and  who,  of  course,  were  not  bound  to  follow  him,  if  in- 
deed they  were  able.  On  the  contrary,  the  contract  was 
made  with  reference,  at  the  time,  to  the  means,  condition, 
position,  and  residence  of  the  parties,  by  implication  at 
least,  as  much  so  as  if  they  had  been  expressly  stated,  and 
no  just  and  reasonable  construction  can  be  given  to  it, 
without  so  understanding  it.  But  according  to  the  mean- 
ing contended  for  on  the  other  side,  it  was  competent  for 
the  defendant  to  take  the  boy  anywhere  and  everywhere 
he  chose,  without  any  one  to  care  for  him,  or  to  look  after 
his  conduct  or  morals,  for,  by  the  agreement,  it  will  be  ob- 
served, he  assumes  no  such  obligation  upon  himself.  Be- 
cause it  is  manifest  that  his  only  object  was  to  secure  to 
himself  the  benefit  of  his  work,  labor,  and  services,  with- 
out incurring  any  such  responsibility,  and  which  always 
devolves  upon  the  master  of  a  regularly-indentured  appren- 
tice. "Will  the  Court  sanction  such  a  pernicious  example, 
and  establish  a  precedent  that  may  lead  to  such  unfortu- 
nate results?  Is  not  this  agreement  therefore  void  as  con- 
travening both  the  letter  and  the  policy  of  the  statute,  and 
as  essentially  and  substantially  a  binding  not  in  conformity 
with  its  requirements?  If  it  is  not  an  evasion,  or  an  at- 
tempt to  evade  its  provisions,  it  would  be  difficult  to  con- 
ceive what  would  constitute  an  evasion  of  either  the  letter 
or  the  spirit  of  it. 

Houston,  ./.,  announced  the  decision  of  the  Court. 

The  articles  of  agreement  in  this  case  being  nothing 
more  than  a  private  contract  inter  partes,  without  any 
statutory  provision  or  regulation  in  regard  to  it,  apparently 
designed  and  adopted  as  a  substitution,  by  arrangement 
and  agreement  between  the  parties,  for  a  formal  indenture 
of  apprenticeship  under  the  statute,  it  should  be  construed 
like  -any  other  contract  in  writing  between  parties,  accord- 
ing to  its  sense  and  meaning,  as  the  same  is  to  be  derived 
from  the  terms  employed  in  it  and  collected  from  the 
whole  instrument;   and  it  is  a  well-settled  rule  of  law  that 


WALTERS  v.  MORROW.  537 

every  agreement  must  have  a  reasonable  construction  ac- 
cording to  the  intent  and  object  of  the  parties  at  the  time 
of  entering  into  it,  in  order  to  effectuate,  rather  than  to 
defeat  that  object  and  intention. 

The  design  and  object  of  the  present  contract  was  to  have 
the  boy,  Richard  Jackson,  taught  the  art  and  trade  of  coach- 
smithing,  and  for  this  purpose  the  parties  to  it,  instead  of 
resorting  to  the  usual  and  better  method  of  binding  him 
as  an  apprentice  according  to  the  forms  of  the  statute,  en- 
tered into  a  private  and  written  agreement  for  the  purpose, 
by  which  it  was  covenanted,  among  other  things,  by  the 
parties  of  the  first  part,  that  he  should  stay  with  the  party 
of  the  second  part  and  serve  him  faithfully  after  the  man- 
ner of  an  apprentice,  until  he  should  arrive  to  the  age  of 
twenty-one  years,  being  then  about  sixteen  years  old ;  and 
by  the  party  of  the  second  part  that  he  would  teach  him, 
or  cause  him  to  be  taught,  the  art  and  trade  before  men- 
tioned, and  that  he  would  pay  the  parties  of  the  first  part, 
whilst  lie  remained  with  him,  thirty  dollars  per  annum,  for 
his  clothing,  and  would  also  allow  them  for  his  boarding, 
washing,  and  mending  (the  amount  due  for  the  first  year, 
$117,  to  be  retained  and  paid  as  provided  for  in  the  con- 
tract), the  sum  of  two  dollars  and  twenty-five  cents  per 
week  during  the  said  term  of  service.  At  the  time  of  ex- 
ecuting the  contract,  all  the  parties  were  residing  in  Wil- 
mington as  citizens  of  one  and  the  same  place,  and  suffi- 
ciently near  and  convenient  to  each  other  to  carry  out  this 
part  of  the  agreement  on  both  sides,  without  serious  in- 
convenience to  each  other,  or  any  greater  expense,  perhaps, 
to  the  parties  of  the  first  part,  than  the  sums  above  stated. 
One  of  the  main  objects  and  motives  of  the  defendant  in 
entering  into  the  agreement,  probably,  was  to  avoid  the  ne- 
cessity of  taking  the  boy  into  his  own  family  and  of  as- 
suming that  personal  care,  charge,  and  control  of  him,  as 
well  as  the  more  stringent  and  imperative  duties  and  ob- 
ligations which  result  from  a  regular  indenture  of  appren- 
ticeship, and  are  imposed  by  it  upon  the  master.  As  the 
boy  was  at  that  time  living  in  the  family  of  his  parents, 

35 


538  SUPERIOR  COURT. 

and  the  parties  were  all  residing  in  the  city  of  Wilming- 
ton, the  defendant  there  established  in  his  trade  and  busi- 
ness of  coachmaking  or  coachsmithing,  and  the  parties 
of  the  first  part  there  permanently  settled  by  anticipation 
for  the  ensuing  five  years  at  least,  it  is  not  only  fair  to  pre- 
sume, under  all  these  circumstances  and  from  the  fact  that 
neither  party  saw  proper  to  insert  in  the  contract  any 
stipulation  or  covenant  in  regard  to  a  change  of  residence, 
or  any  change  in  their  relation  to  each  other  in  this  respect 
in  the  meanwhile,  that  it  was  at  that  time  the  expectation 
and  design  of  both  parties,  that  they  would  so  continue 
to  reside  convenient  to  each  other,  and  that  the  boy  should 
continue  to  live  in  the  family  of,  and  be  lodged  and  boarded 
by  his  parents,  or  where  they  at  least  might  have,  without 
the  necessity  of  removing  from  the  State  and  changing 
their  residence  to  another  and  distant  city,  at  the  will  and 
pleasure  of  the  defendant  solely,  the  personal  care,  super- 
vision, charge,  and  control  over  him,  and  the  provision  and 
supply  of  such  necessaries  as  were  stipulated  for  him  in 
the  contract,  at  the  prices  stated,  during  his  term  of  ser- 
vice. It  was  probably  in  consideration  of  these  facts  and 
the  expectation  and  understanding  just  stated,  that  they 
agreed  to  clothe  him  for  the  sum  of  thirty  dollars  per  year, 
and  furnish  his  board,  lodging,  washing  and  mending  for 
the  further  sum  of  two  dollars  and  a  quarter  per  week.  It 
was  therefore  but  a  reasonable  construction  of  this  portion 
of  the  contract  to  conclude  that  such  was  the  understand- 
ing and  intention,  as  well  as  the  expectation  of  the  parties 
at  the  time  when  the  agreement  was  entered  into ;  for  it 
was  strongly  if  not  irresistibly  implied  from  the  facts  and 
circumstances  before  referred  to.  The  language  of  the 
covenant  on  this  point,  when  fairly  interpreted,  also  im- 
ported the  same.  It  is,  that  "  the  said  Walters  is  to  allow 
the  parties  of  the  first  part  for  the  boarding,  washing,  and 
mending,  of  the  said  Richard,  the  sum,"  &c.  He  was  then 
living  and  lodging  in  their  family,  and  as  no  provision  is 
made  for  the  future  removal  of  the  defendant  or  the  minor 
from  the  State,  or  for  boarding  him  elsewhere,  the  terms 


WALTERS  v.  MORROW.  539 

naturally  imply  and  must  be  understood  to  mean  that  it 
was  the  intention  of  the  parties  that  he  should  continue  in 
the  family  of  his  parents  at  the  price  agreed  upon. 

Such  being  the  construction  to  be  placed  on  this  part  of 
the  agreement,  the  only  part  involved  in  the  present  con- 
troversy, and  the  covenants  alluded  to  being  reciprocal  or 
dependent  covenants,  and  such  being  the  contract,  under- 
standing, and  arrangement  between  the  parties  on  this 
point,  it  was  clearly  incompetent  for  either  party  to  put  it 
out  of  the  power  of  the  other,  without  his  consent,  to  per- 
form his  part  of  the  contract  in  this  or  any  other  respect, 
or  to  deprive  him  of  any  profit,  benefit,  advantage,  or  gra- 
tification which  would  or  might  justly  accrue  to  him  from 
his  performance  of  it;  and  it  was,  therefore,  not  allowable, 
nor  in  accordance  with  the  obvious  design  of  the  parties, 
for  the  defendant,  when  by  his  own  voluntary  act  he  trans- 
ferred his  place  of  business  beyond  the  limits  of  the  State, 
and  removed  from  the  city  of  Wilmington  to  the  city  of 
Baltimore,  to  insist  on  removing  the  minor  with  him,  with- 
out the  consent  of  the  plaintiff',  far  away  from  the  society 
of  his  family,  and  beyond  their  personal  care,  control,  and 
supervision,  to  be  lodged  and  boarded  among  strangers, 
and  to  deprive  them  of  whatever  benefit,  advantage,  or 
gratification  might  accrue  to  them  from  having  him  to 
remain  with  them  during  his  term  of  service.     To  have 
done  this  would  have  involved,  we  think,  a  clear  infraction 
of  the  agreement  and  intention  of  the  parties  at  the  time 
when  the  contract  was  entered  into,  and  that  he  had  no 
right  to  insist  upon  it.     And  as  he  had  thus,  by  his  own 
voluntary  act  and  by  his  removal  beyond  the  limits  of  the 
State,  without  the  consent  of  the  plaintiff,  put  it  both  out 
of  his  own  power  and  out  of  the  power  of  the  parties  of 
the  second  part  to  perform  their  respective  covenants  and 
agreement    in    this    respect,  judgment    must   be    entered 
against  him,  in  favor  of  the  plaintiff,  for  the  sum  ascer- 
tained by  the  agreement  of  the  counsel,  and  submitted  in 
the  case  stated,  with  costs,  &c. 


COURT  OF  ERRORS  AND  APPEALS. 

JUNE    TERM, 
18  58. 


Thomas  Robinson,  defendant  below,  Plaintiff'  in  error,  v. 
Woolsey  Burton,  indorsee  of  Nathaniel  Ingram,  plain- 
;ift"  below,  Defendant  in  error. 

The  acknowledgment  of  a  debt  as  a  subsisting  demand,  will  take  a  case 
out  of  the  operation  of  the  statute  of  limitations,  without  an  express 
promise  to  pay  it.  Yet  the  principle  seems  to  require  that  the  acknow- 
ledgment should  be  of  a  subsisting  debt,  and  recognizing  an  obligation 
to  pay  it  as  a  debt  originally  just  and  still  due.  And  to  properly  value 
the  force  of  such  admissions,  the  circumstances  under  which  they  are 
made  may  be  considered. 

But  where  the  acknowledgment,  or  recognition  of  the  debt  relied  on,  was 
an  agreement  between  the  parties  in  writing,  made  at  the  time  of  enter- 
ing into  the  trial  of  an  amicable  action  between  the  plaintiff  in  a  differ- 
ent character,  as  an  administrator,  and  the  defendant,  "that  a  certain 
note,  bearing  date,  &c,  from  the  defendant  to  another  person,  and  by 
him  Indorsed  to  the  plaintiff  in  the  amicable  action  in  his  own  right, 
or  any  payments  or  credits  applicable  thereto,  should  not  be  considered 
by  the  arbitrators,"  it  is  not  sufficient  for  the  ("curt,  in  charging  the 
jury,  to  leave  it  to  them  simply  to  determine  whether  tin-  agreement 
merely  referred  to  the  note  on  which  the  action  was  brought,  hut  it 
should  also  have  left  it  to  the  jury  to  say  whether  the  agreement  recog- 
nized that  note,  or  any  part  of  it,  as  yet  due. 

Writ  of  error  to  the  Superior  Court  for  Sussex  County. 
Before  Harrington,  Chancellor,  Gilpin,  Chief  Justice,  and 
Wootten,  Justice. 

The  ease  below  was  an  action  of  assumpsit  on  a  proiuis- 


ROBINSON  v.  BURTON.  541 

sory  note  from  Nathaniel  Ingram  to  Thomas  Robinson,  the 
defendant  below,  dated  August  8th,  1840,  payable  twelve 
months  after  date,  for  $500,  and  by  Ingram  indorsed  to 
Woolsey  Burton,  the  plaintiff  below.  Upon  the  note  was 
indorsed  a  credit,  of  the  date  of  the  2d  of  May,  1842,  of 
$59.65  for  interest,  and  of  $240.83  on  the  principal.  The 
only  defence  relied  upon  by  the  defendant  was  the  plea  of 
the  statute  of  limitations;  and  on  the  trial  below  the  plain- 
tiff offered  in  evidence,  in  order  to  rebut  the  bar  of  the 
plea,  and  to  take  the  case  out  of  the  operation  of  the  sta- 
tute, as  a  subsequent  acknowledgment  of  the  note  by  the 
defendant  as  a  still  subsisting  demand  against  him,  the 
following  agreement  in  writing,  and  signed  by  the  parties 
to  it,  between  the  plaintiff,  as  the  administrator  of  Miers 
Burton,  deceased,  and  the  defendant,  executed  on  the  4th 
day  of  September,  1854  (the  action  on  the  note  having 
commenced  the  next  day),  on  the  trial  of  an  amicable 
action  between  them  before  arbitrators : 

"  Woolsey  Burton,  sole  remaining  administrator  of  Miers 
Burton,  deceased,  v.  Thomas  Robinson. 

u  Amicable  Action.  Matthew  Rench,  James  Stuart,  and 
Jacob  Moore,  Esqrs.,  arbitrators. 

"  And  now,  to  wit,  this  fourth  day  of  September,  A.D. 
eighteen  hundred  and  fifty-four,  it  is  agreed  between  the 
said  parties  that  a  certain  note,  bearing  date  August  8th, 
1840,  from  the  said  Thomas  Robinson  to  Nathaniel  Ingram, 
and  indorsed  by  him  to  the  said  Woolsey  Burton  in  his  own 
right,  or  any  payments  or  credits  applicable  thereto,  shall 
not  be  considered  by  said  arbitrators  in  the  above  stated 
case." 

The  counsel  for  the  defendant  objected  to  the  admissi- 
bility of  the  agreement  in  evidence,  on  the  ground  that  it 
was  not  between  the  parties  to  the  suit;  and  as  between 
the  parties  in  the  amicable  action,  it  contained  no  admis- 
sion of  the  note  as  a  present  subsisting  demand  against 
the  defendant,  the  effect  of  the  agreement  simply  being  to 
exclude  it  from  the  consideration  of  the  arbitrators  in  that 
action.     But  the  Court  overruled  the  objection,  and  in  the 


542  COURT  OF  ERRORS  AND  APPEALS. 

charge  to  the  jury  instructed  them,  that  if  they  were  satis- 
fied that  the  agreement  had  reference  to  the  promissory 
note  in  question,  and  on  which  the  present  action  was 
founded,  it  was  a  sufficient  recognition  of  it  as  a  subsisting 
demand  at  that  time  against  the  defendant,  to  take  it  out 
of  the  operation  of  the  statute  of  limitations,  and  the 
plaintiff  was  entitled  to  recover.  To  which  the  defendant 
tendered  a  bill  of  exceptions. 

Robinson,  for  the  plaintiff  in  error  :  An  acknowledgment, 
to  take  a  case  out  of  the  operation  of  the  statute,  must  be 
an  unqualified  and  unconditional  recognition  or  admission 
of  a  present  indebtedness,  which  the  party  is  liable  and 
willing  to  pay,  and  there  must  either  be  an  express  promise 
to  pay,  or  circumstances  proved  from  which  a  promise  to 
pay  may  reasonably  be  implied.  Waples  v.  Layton  <f  Sip- 
pie,  3  Harr.  508;  1  Smith's  L.  C.  712,  714,  716;  6  Peters, 
86 ;  1  Excheq.  Rep.  118 ;  1  Peters,  351 ;  8  Oranch,  72 ;  3 
Wend.  532 ;  2  Pick.  368 ;  21  Pick.  323.  But  such  was  not 
the  nature  of  the  agreement  offered  in  evidence  to  remove 
the  bar  of  the  statute  in  this  case.  The  only  purpose  and 
effect  of  that  agreement  was,  that  the  promissory  note 
which  was  then  in  dispute  between  the  parties,  should 
not  be  considered  in  the  amicable  action  which  was  then 
on  trial  before  the  arbitrators.  What  is  or  is  not  an  ac- 
knowledgment which  will  take  a  case  out  of  the  operation 
of  the  statute,  is  a  question  of  intention  on  the  side  of  the 
party  making  it;  and  if  it  is  doubtful  or  uncertain,  it  can- 
not have  that  effect.  10  Barr,  129;  4  31.  #  S.  458;  11 
Wheat.  309;  4  Greenl.  413,  441 ;  5  Conn.  480;  3  Conn.  131; 
5  New  Ilamp.  154;  1  Watts,  275. 

But  there  is  another  objection  to  be  made  to  the  charge, 
and  that  is,  to  the  terms  in  which  the  Court  submitted  the 
question  involved  in  the  ease  to  the  jury.  The  only  ques- 
tion which  the  Court  left  to  the  consideration  of  the  jury 
was,  whether  the  agreement  referred  to  the  promissory 
note  on  which  the  suit  was  founded,  prejudging  the  ques- 
tion, which  was  equally  a  question  for  the  consideration 


EOBINSON  v.  BURTON.  543 

and  decision  of  the  jury,  whether  it  contained  an  unquali- 
fied recognition  of  the  note,  or  of  the  balance  due  upon  it, 
as  a  then  subsisting  demand  against  the  defendant,  or  such 
an  acknowledgment  in  point  of  fact,  as  the  Court  should 
have  instructed  the  jury  would  suffice  to  remove  the  bar 
of  the  statute.  The  construction  and  meaning  of  every 
agreement  is  a  question  of  fact  for  the  determination  of 
the  jury ;  its  legal  operation  and  effect  it  is  for  the  Court 
alone  to  consider  and  decide.  But  the  Court  in  this  case 
used  broader  terms,  perhaps,  than  were  intended,  and  as- 
sumed to  decide,  and  did  decide,  not  only  the  legal  opera- 
tion and  effect,  but  the  construction  and  meaning  of  the 
agreement,  and  the  intention  of  the  defendant  at  the  time 
of  entering  into  it,  provided  the  jury  should  be  of  opinion 
that  the  agreement  had  reference  to  this  particular  pro- 
missory note. 

C.  S.  Layton,  for  the  defendant  in  error  :  "What  is,  or  is 
not  evidence,  is  a  question  for  the  Court ;  also  the  suffi- 
ciency of  the  evidence  in  a  legal  point  of  view  is  a  ques- 
tion for  the  Court.  In  this  case  the  Court  instructed  the 
jury,  that  if  they  were  satisfied  from  the  evidence  that  the 
agreement  had  reference  to  the  promissory  note  in  ques- 
tion, that  it  was  a  sufficient  recognition  of  a  subsisting 
demand  to  take  it  out  of  the  operation  of  the  statute. 
But  was  this,  after  all,  anything  more  than  a  proper  con- 
clusion as  to  the  legal  effect  and  operation  of  the  instru- 
ment as  an  acknowledgment?  Now  what  is  the  meaning 
of  the  agreement  ?  I  cannot  concur  in  the  statement  of 
the  counsel  on  the  other  side,  that  the  object  of  it  was 
simply  to  exclude  the  promissory  note  from  the  considera- 
tion of  the  arbitrators  in  the  case  they  were  then  about  to 
try;  and  upon  its  own  terms  it  can  fairly  receive  no  such 
construction.  It  unequivocally  admits  first,  the  existence 
of  a  note  corresponding  with  this  in  the  names  of  the 
maker,  the  payee  and  the  indorsee,  and  in  date;  and  in 
the  second  place,  that  there  was  a  balance  due  upon  it  as  a 
present  subsisting  demand,  for  it  speaks  of  credits,  or  pay- 


544  COURT  OF  ERRORS  AND  APPEALS. 

merits  upon  it.  And  why  proceed  to  add  as  it  does,  that 
neither  the  note,  or  the  credits  on  it,  should  be  considered 
by  the  arbitrators,  if  it  was  merely  intended  to  exclude 
the  matter  from  their  consideration  ?  No,  the  object  of 
this  was,  whilst  it  admitted  the  existence  of  the  note  as  a 
subsisting  demand,  subject  to  any  payments,  or  credits  on 
it,  and  by  inference  and  implication  necessarily,  that  there 
was  some  balance  due  upon  it,  but  that  in  the  amicable 
action,  neither  the  plaintiff  should  avail  himself  of  the 
note,  or  the  defendant  of  the  payments  on  it;  and  it  would 
make  both  parties  stultify  themselves  to  suppose  that  they 
would  refer  to  the  matter  in  such  terms,  without  admitting 
and  meaning  to  admit,  that  such  a  note,  with  credits  upon 
it,  actually  existed.  And  if  so,  then,  upon  the  authorities 
cited  on  the  other  side,  it  clearly  took  the  case  out  of  the 
operation  of  the  statute,  and  the  Court  was  right  in  so 
charging  the  jury. 

The  courts  in  this  State  have  always  held,  that  any  un- 
qualified admission  of  the  debt  as  a  subsisting  demand, 
would,  without  any  promise,  either  express  or  implied  to 
pay  it,  remove  the  bar  of  the  statute,  and  the  principle  has 
been  ruled  and  settled  in  England  likewise.  1  Harr.  Rep. 
109;  3  Ibid.  528  ;  4  Ibid.  368  ;  5  Ibid.  380;  1  Ld.  Raym.  419; 
2  Saund.  PL  <f-  Ev.  647;  2  Grant  Er.,  sees.  440,  441;  16  East, 
420;  I  Harr.  £  Gill,  204. 

Robinson  replied. 

Harrington,  Ch.,  delivered  the  opinion  of  the  Court. 

It  was  decided  by  this  Court,  in  Newlin  v.  Duncan,  1 
Harr.  Rep.  207,  in  conformity  with  the  uniform  decisions 
and  practice,  that  an  acknowledgment  of  a  debt  as  a  subsist- 
ing demand  will  take  it  out  of  the  act  of  limitations,  without 
an  express  promise  to  pay  it.  There,  has  been  no  vacilla- 
tion in  the  courts  on  this  principle,  but  some  conflict  in  its 
application  to  the  tacts  in  each  case.  In  Waples  v.  Isiyton 
<f  >s77^< ,  3  Harr.  Hep.  509,  where  tin1  defendant,  Waples, 
neither   denied   nor   admitted   the  debt   in  terms,  but  re- 


ROBINSON  v.  BURTON.  545 

marked  that  there  were  other  persons  of  his  name  in  the 
county,  the  Court  said  there  was  nothing  which  they  would 
leave  to  a  jury.  They  would  leave  nothing  to  the  jury, 
unless  an  acknowledgment  of  a  subsisting  debt  might  be 
fairly  drawn  from  it.  And  yet,  in  Black's  Exrs.  v.  Heybold, 
3  Harr.  Rep.  528,  the  jury  was  allowed  to  infer  such  an  ac- 
knowledgment from  a  very  equivocal  letter  of  the  defen- 
dant, speaking  of  the  "  claim,"  and  expressing  the  hope 
that  "  when  they  should  talk  the  matters  over  they  would 
be  able  to  settle  the  business  satisfactory  to  both  parties." 
These  are  extreme  cases.  Yet  the  principle  seems  to  re- 
quire that  the  acknowledgment  should  be  of  a  subsisting  or 
existing  debt,  and  recognizing  an  obligation  to  pay  it — a 
debt  originally  just  and  still  due.  2  Greenl.  Ev.,  sec.  441. 
And  to  properly  value  the  force  of  such  admissions,  the 
circumstances  under  which  they  are  made  may  be  con- 
sidered. The  circumstances  under  which  what  is  claimed 
to  be  an  admission  in  this  case  was  made  are  these :  The 
parties  were  before  referees  in  an  amicable  action  with  re- 
ference tcj  a  claim  by  Woolsey  Burton,  in  a  representative 
character,  against  Thomas  Robinson,  and  the  object  of  the 
written  agreement  seems  to  have  been  to  show  that  the 
note  referred  to  was  not  in  any  way  to  be  considered  in 
this  reference — a  precaution  which  was  quite  unnecessary, 
as  it  would  not  have  been  considered,  and  was  not  within 
the  submission.  But  with  reference  to  its  force  as  an  ad- 
mission of  indebtedness,  it  was  proper  that  it  should  have 
been  left  to  the  jury  to  say,  not  merely  whether  it  referred 
to  the  note  on  which  this  action  is  brought,  but  whether 
:t  -^cognized  that  note,  or  any  portion  of  it,  as  yet  due.  In 
,.  respect  we  think  the  ruling  of  the  Court,  as  set  out  in 
,•  exceptions,  was  too  narrow,  as  they  only  left  it  to  the 
jury  to  determine  whether  the  agreement  had  reference. 
to  the  note,  and  not  whether  it  amounted  to  a  recognition  of  the 
note  as  a  subsisting  or  existing  debt.  We  think  this  was  error, 
and  that  for  this  reason  the  judgment  should  be  reversed, 
and  the  case  remanded  to  the  court  below. 

Judgment  reversed. 


546  COURT  OF  ERRORS  AND  APPEALS. 


John  W.  Hall,  defendant  below,  Plaintiff  in  error,  v. 
George  W.  Green  and  others,  plaintiffs  below,  Defen- 
dants rti  error. 

A  contract  between  a  shipbuilder  and  another,  to  build  for  him  the  hull 
of  a  sloop  of  certain  dimensions  and  quality,  at  a  stipulated  price  per 
ton,  to  be  paid  in  three  equal  instalments  at  specific  stages  of  the  work 
as  it  progressed,  the  former  to  find  all  the  materials  and  do  all  the  work 
and  deliver  her  complete  by  a  certain  day  in  Philadelphia,  subject  to 
the  inspection  of  two  persons,  if  required  by  the  latter,  does  not  appro- 
priate or  vest  the  property  in  the  vessel  during  the  progress  of  the 
work  upon  it  and  before  completion  and  delivery  as  stipulated  in  the 
contract,  in  the  latter ;  notwithstanding  he  has  paid  to  the  builder  the 
first  instalment  of  the  price  at  the  specific  stage  of  the  work  as  provided 
for  in  the  contract,  and  also  the  second  instalment  and  a  hundred  dol- 
lars over,  by  way  of  advancement  to  him,  when  the  hull  is  about  two- 
thirds  finished ;  but  the  property  in  the  vessel  remains  in  the  builder, 
until  finished  and  delivered  as  stipulated  in  the  con'tract,  and  it  may  be 
seized  and  sold  on  execution  at  the  suit  of  his  creditors,  in  its  unfinished 
state,  as  his  property.  It  is  competent,  however,  for  the  parties  to  the 
contract  to  agree  in  express  terms  that  the  property  in  the  unfinished 
vessel  shall  pass  from  the  builder  and  vest  in  the  purchaser,  on  the  pay- 
ment of  the  first  instalment  of  the  price  as  stipulated  in  ifcj  if  such  be 
their  meaning  and  intention. 

The  general  rule  is,  when  one  contracts  with  another  for  the  building  of 
a  vessel,  or  other  thing  not  then  in  being,  for  a  given  price,  that  no 
property  in  it  vests  in  the  person  for  whom  it  is  to  be  constructed, 
during  the  progress  of  the  work  upon  it,  nor  indeed  until  it  is  fully 
completed  and  delivered,  ot  at  least,  ready  for  delivery;  and  the  pay- 
ment of  the  first,  or  two  first  instalments  of  the  price  during  the  pro- 
gress of  the  work  in  this  case,  and  as  stipulated  in  the  contract,  is  not 
sufficient  to  take  the  case  out  of  the  general  rule  and  vest  the  property 
in  the  purchaser  by  appropriation.  The  doctrine  of  appropriation,  in 
such  cases,  has  never  been  recognized  as  the  law  in  this  country. 

If  the  contract  is  executory  in  its  terms,  and  is  for  the  building  of  a  thing 
not  yet  in  being,  in  which  nothing  is  said  as  to  when  the  property  shall 
vest  in  the  person  for  whom  it  is  to  be  built,  the  Court  cannot  say  with 
any  fair  show  of  reason,  because  it  contains  a  provision  for  payment  of 
the  price  by  instalments  according  to  the  progress  of  the  work,  that  it 
was  the  intention  of  the  parties  the  property  in  the  unfinished  sloop 
should  vest  in  the  party  for  whom  she  was  to  be  built,  upon  payment 
of  the  first  instalment;  especially  as  he  was  not  bound  to  accept  the 
sloop  until  she  had  been  completed  and  had  passed  inspection  in  Phila- 
delphia upon  her  delivery  there,  according  to  the  terms  of  the  con- 
tract. 


HALL  v.  GREEN.  547 

Writ  of  error  to  the  Superior  Court  for  Sussex  County, 
before  Harrington,  Chancellor,  Gilpin,  Ch.  J.,  and  Woot- 
ten,  J. 

The  suit  below  was  an  action  of  trover,  brought  by  the 
plaintiffs  below,  defendants  in  error,  against  the  defendant 
below,  plaintiff  in  error,  to  recover  the  value  of  an  un- 
finished vessel,  sold  during  the  progress  of  its  construction 
under  sundry  executions  levied  upon  it  as  the  property  ot 
one  James  H.  Tubbs,  the  builder,  and  purchased  at  the 
sale  by  the  defendants  in  error.  The  case  was  that  Tubbs, 
the  builder,  had  entered  into  a  written  contract  with  John 
W".  Hall,  the  plaintiff  in  error,  on  the  31st  of  August, 
1854,  to  build  for  him  the  hull  of  a  sloop  of  certain  speci- 
fied dimensions  and  quality,  and  find  all  materials,  and  de- 
liver it  complete  in  the  city  of  Philadelphia  by  the  first 
day  of  March  ensuing,  to  pass  the  inspection  of  two  per- 
sons, if  required  by  Hall,  at  the  rate  of  twenty-eight  dol- 
lars per  ton,  one-third  to  be  paid  when  the  keel,  stem, 
sternpost  and  floors  were  laid,  one-third  when  the  deck- 
frame  and  decks  were  laid,  and  the  remaining  third  when 
it  should  be  delivered  in  Philadelphia,  all  complete  and 
according  to  the  contract.  Tubbs  proceeded  under  the 
contract  to  procure  materials  and  to  build  the  vessel,  and 
when  it  was  about  two-thirds  built,  and  whilst  he  was  still 
at  work  upon  it,  sundry  executions  were  sued  out  on  judg- 
ments recovered  against  him,  and  were  levied  upon  it,  and 
under  which  it  was  afterwards  sold  at  public  sale  and  was 
bought  by  the  defendants  in  error,  as  his  property.  At 
the  time  of  the  levy  of  the  executions  upon  it,  Hall  had 
paid  in  the  aggregate  to  Tubbs  on  the  work  the  sum  of 
$951.38,  which  exceeded  the  amount  then  due  by  the 
terms  of  the  contract  one  hundred  dollars.  Upon  the  levy 
of  the  executions  on  the  property  as  his,  Tubbs  notified 
Hall  of  the  fact,  and  at  once  abandoned  his  contract  and 
his  work  upon  the  vessel,  and  did  no  more  upon  it.  Hall 
attended  the  sale  of  it  under  the  executions,  and  notified 
all  bidders  that  he  claimed  the  property  as  his  own,  by 
virtue  of  his  contract  with  Tubbs,  the  builder,  and   the 


548     COURT  OF  ERRORS  AND  APPEALS. 

payments  and  advances  he  had  made  him  during  the  pro- 
gress of  the  work  pursuant  to  the  contract ;  and  afterwards, 
on  the  formal  demand  of  the  defendants  in  error,  as  the 
purchasers  at  the  sale  of  the  property,  refused  to  deliver  it 
to  them ;  but  proceeded  to  finish  and  complete  the  hull  at 
his  own  expense,  procuring  materials  and  employing  work- 
men for  the  purpose. 

Upon  this  contract  and  the  facts  above  stated,  the 
Court  below  charged  the  jury,  that  when  a  contract  is  en- 
tered into  for  an  article  not  then  in  existence,  but  which 
is  afterwards  to  be  constructed,  it  does  not  become  the 
property  of  the  person  for  whom  it  is  to  be  made,  until  it 
is  completed  and  delivered  to  him,  or  is  at  least  ready  to 
be  delivered  to  him,  unless  it  is  otherwise  specially  pro- 
vided in  the  contract.  For  notwithstanding  the  general 
principle  of  law  was  as  just  stated,  it  was  competent  for 
the  parties  by  express  agreement  to  contract  that  the  arti- 
cle should  become  the  property  of  the  purchaser  at  any 
particular  stage  of  the  work  upon  it ;  but  in  the  absence 
of  any  such  stipulation  in  the  contract  between  them,  the 
principle  of  law  before  stated  must  prevail,  and  the  owner- 
ship of  the  property  would  in  the  meanwhile  continue  in 
the  maker.  And  that  a  contract  to  build  the  hull  of  a 
sloop  at  a  stipulated  price  per  ton,  to  be  paid  in  three 
equal  instalments  at  specific  stages  of  the  work  as  it  pro- 
gressed, the  builder  to  find  all  the  materials  and  to  com- 
plete her  and  deliver  her  by  a  certain  day  to  the  purchaser 
in  Philadelphia,  subject  to  the  inspection  of  two  persons, 
if  required  by  him,  did  not  appropriate  or  vest  the  pro- 
perty in  the  vessel  during  the  progress  of  the  work  in 
the  purchaser,  notwithstanding  he  may  have  paid  to  the 
builder  the  two  first  instalments  at  the  specific  stages  of 
the  work  agreed  upon,  when  about  two-thirds  built;  but 
the  ownership  of  the  vessel  remains  in  the  builder,  and  is 
liable  to  be  taken  in  execution  for  his  debts.  To  this 
opinion  and  charge  of  the  Court  the  counsel  for  the  defen- 
dant below  tendered  a  bill  of  exceptions,  and  by  writ  of 
error  removed  the  case  to  this  Court. 


HALL  v.  GKEEN.  549 


W.  Saulsbury,  for  the  plaintiff  in  error :  The  doctrine  or 
principle  of  the  appropriation  of  ships,  and  which  applies 
to  no  other  species  of  property,  in  the  course  of  construc- 
tion, to  the  purchaser  as  the  work  progresses,  when  built 
under  a  special  contract  to  pay  for  it  by  instalments  at 
specific  stages  as  the  work  proceeds,  is  distinctly  stated 
and  approved  by  Lord  Abbott,  than  whom  there  can  be 
no  higher  authority  on  such  a  subject.  Abb.  bn  Ship.  6. 
But  the  Court  below,  in  their  charge  to  the  jury,  laid  great 
stress  on  the  fact,  to  take  it  out  of  the  operation  of  this 
well-established  rule,  that  in  this  case  the  vessel  was  to  be 
finished  and  then  delivered  in  the  port  of  Philadelphia, 
subject  to  inspection,  if  the  purchaser  should  require  it. 
I  shall  show,  however,  not  only  from  the  principle  as  an- 
nounced by  Abbott,  but  from  the  adjudged  cases  in  Eng- 
land on  this  point,  that  the  matter  of  final  delivery  does 
not  control  or  affect  the  principle,  but  is  wholly  immate- 
rial ;  because,  if  it  be  true,  as  the  cases  which  I  shall  here- 
after cite  will  show,  that  the  ship,  as  the  specific  stages  of 
the  building  proceeds  and  the  stipulated  payments  of  the 
purchase-money  are  made,  becomes  at  the  completion  of 
each  stage  of  the  work,  by  appropriation,  the  property  of 
the  purchaser,  no  one  can  fail  to  perceive  that  it  operates 
without  any  actual  delivery,  and  is  altogether  independent 
of  that  condition  or  circumstance.  But  if  the  principle 
be  true,  it  must  necessarily  involve  a  constructive  delivery 
of  the  ship,  upon  the  completion  of  each  stage  of  the  work 
as  it  proceeds,  and  the  payment  of  the  purchase-money 
pursuant  to  the  terms  of  the  contract.  And  this  is  the 
ruling  in  the  cases  of  Wood  v.  Russell,  7  Eng.  C.  L.  It. 
310,  and  Clark  v.  Spruce,  31  Eng.  C.  L.  li.  107,  for  they 
rest  distinctly  on  the  principle  of  appropriation  as  thus 
stated,  and  upon  no  other  ground.  They  do  not  rest 
upon  the  ground  that  there  was  any  special  stipulation 
contained  in  the  agreement  that  such  should  be  the  ease, 
or  upon  the  ground  that  such  was  the  intention  of  the 
parties;  because  there  was  no  such  intention  expressed,  or 
even  intimated  in  the  contract,  unless  we  may  inter,  as  we 


550  COURT  OF  ERRORS  AND  APPEALS. 

very  properly  may,  from  the  general  nature  of  a  contract 
like  this,  that  such  was  the  intention  of  the  parties,  and 
from  the  fact  that  the  article  was  adopted  and  paid  for  by 
the  purchaser  at  each  stage  of  the  work  as  it  was  progres- 
sively finished.  But  if  it  was  competent  for  the  parties 
by  special  agreement  to  contract  that  the  vessel  should 
become  the  property  of  the  purchaser  as  the  work  pro- 
ceeded an'd  at  each  stage  was  paid  for,  and  thus  to  trans- 
fer the  right  of  property  and  the  ownership,  then  no  ac- 
tual delivery  could  be  essential,  and  the  principle  of  ap- 
propriation would  apply  in  effect  in  such  a  case,  although 
a  different  designation  for  the  same  thing  in  effect. 

It  is  therefore  apparent  that  in  contracts  of  this  descrip- 
tion, the  question  does  not  depend  either  upon  an  express 
intention  of  the  parties  specially  embodied  in  the  contract, 
or  upon  an  actual  delivery  of  the  ship  when  finished,  but 
entirely  upon  the  principle  of  appropriation,  and  the  im- 
plied understanding  and  consent  of  the  parties,  to  be  in- 
ferred from  the  peculiar  nature  of  such  a  contract,  and 
from  the  approval  of  the  work  as  it  proceeds  from  stage 
to  stage  towards  completion,  and  the  payment  by  the  pur- 
chaser of  the  stipulated  instalments  as  they  fall  due  by  the 
agreement  to  the  builder.  In  support  of  this  view  I  will 
refer  to  the  following  cases,  in  addition  to  those  already 
cited.  Laidler  v.  Burlinson,  2  Mees.  <$•  Wels.  602 ;  Goss  v. 
Quintal,  42  Eikj.  C.  L.  R.  430;  Rhodes  v.  Thwaits,  13  Eng. 
C.  L.  R.  181 ;  Good  v.  Langky,  14  Eng.  C.  L.  R.  22 ; 
Wood  v.  Bell,  85  Eng.  C.  L.  R.  771 ;  24  Eng.  L.  <f  E  Rep. 
220;  Bell  on  Contracts  of  Sale,  50  Law  Libr.  13;  Ch.it.  on 
Contr.  378,  381. 

But  it  has  been  said  that  the  principle  ruled  in  the  cases 
of  Wood  v.  Russell  and  Clark  v.  tipcnce,  has  never  been 
recognized  in  this  country,  and  that  the  general  principle 
established  in  the  case  of  Mucklow  v.  Mangles,  1  Taunt. 
318,  that  a  thing  contracted  to  be  made,  though  paid  for 
in  advance,  is  not  the  property  of  the  purchaser  until  it  is 
finished  and  delivered,  is  the  only  principle  that  applies 
here.     But  this  is  jiot  true,  and  the  first  case  ruled  to  the 


HALL  v.  GREEN.  551 


contrary  in  this  country  which  I  shall  cite  is  that  of  McEl- 
deny  v.  Flannagan,  1  Harris  $  Gill,  308.  In  that  case, 
which  arose  in  Maryland  only  a  few  years  after  Wood  v. 
Russell  had  been  decided  in  England,  the  principle  ruled 
in  the  last-mentioned  case  was  fully  recognized  and  sus- 
tained, and  it  was  decided  solely  on  the  ground  for  which 
I  contend.  The  other  American  case  to  which  I  shall 
refer,  and  which  is  to  the  same  effect,  is  the  case  of  Butter- 
worth  v.  McKinley,  11  Humph.  (Tenn.)  Hep.  206.  These 
cases  fully  sustain  the  principle  for  which  I  have  been 
contending,  and  ruled  in  all  the  cases  which  I  have  before 
cited,  and  clearly  show  that  such  is  the  doctrine  in  regard 
to  contracts  of  this  nature,  not  only  in  England,  but  also 
in  this  country. 

E.  D.  Cullen,  for  the  defendants  in  error:  I  shall  not 
controvert  any  of  the  cases  cited  on  the  other  side,  because 
this  case  differs  from  all  of  them  in  one  important  and  es- 
sential particular,  and  it  is  this:  in  none  of  those  cases  was 
anything  said  in  the  contract  about  the  delivery  of  the  ship, 
when  or  where  it  was  to  be  done.  Besides,  in  this  case, 
there  was  no  intention  apparent  upon  the  contract  that  the 
vessel  should  become  the  property  of  the  purchaser  as  the 
work  proceeded  and  was  paid  for  by  him.  There  was  no 
agent  on  his  part,  as  in  the  cases  cited,  to  superintend  and 
approve  the  work  and  materials  as  it  advanced ;  and  what 
constitutes  a  still  more  striking  and  essential  difference  be- 
tween them,  and  which  completely  negatives  the  idea  that 
the  sloop  was  to  become  the  property  of  llall  at  an  earlier 
day,  it  is  expressly  stipulated  in  the  contract  that  she  was 
to  be  finished  by  a  certain  day  and  then  delivered  in  Phila- 
delphia, subject  to  inspection  and  approval  of  two  persons, 
if  required  by  him,  before  lie  was  to  be  bound  to  accept 
and  receive  her.  Viewed  in  this  aspect,  and  with  this  im- 
portant provision  of  the  contract  before  us,  and  it  can  be 
viewed  in  no  other,  what  ground  is  there  for  saving  that 
she  became,  by  appropriation,  the  property  of  llall  at  the 
specified  stages  of  the  work  upon  her,  as  it  progressed  and 


552  COURT  OF  ERRORS  AND  APPEALS. 

was  paid  for  by  him  according  to  the  contract  in  that  re- 
spect? The  doctrine  of  appropriation,  as  broadly  stated 
and  contended  for  on  the  other  side,  never  was  a  part  of 
the  common  law  of  this  country,  if  it  is  now  of  England, 
which  we  deny.  And  no  case  can  be  found  in  this  country 
to  sustain  the  principle  as  thus  stated.  The  case  of  Mack- 
low  v.  Mangles,  1  Taunt.  318,  has  always  been  regarded  as 
the  leading  case  on  this  subject,  and  has  always  been  fol- 
lowed in  this  country.  It  was  the  case  of  a  barge  con- 
tracted to  be  built  for  the  purchaser,  and  paid  for  in  ad- 
vance by  him.  Even  his  name  had  been  painted  on  the 
stern  of  it  by  the  builder.  During  its  construction,  and 
before  its  completion,  it  was  seized  in  execution  by  the 
sheriff  of  Middlesex,  at  the  suit  of  the  creditors  of  the 
builder,  and  the  court  held  that  it  was  not  the  property  of 
the  purchaser,  and  could  not  become  so  until  it  was  fin- 
ished and  delivered  to  him.  The  same  principle  was  ruled 
in  Merritt  v.  Johnson,  7  Johns,  472,  in  which  the  contract 
was  similar  to  this  in  all  of  its  essential  features,  and  which 
has  constituted  from  that  time  to  the  present  a  leading  au- 
thority on  this  question  in  this  country.  The  same  prin- 
ciple is  also  recognized  and  affirmed  in  Johnson  v.  Hunt,  11 
Johns,  137,  and  in  Ward  v.  Shaio,  7  Wend.  404. 

In  all  the  cases  cited  on  the  other  side,  including  even 
the  Maryland  case  of  McEldirry  v.  Flannagan,  there  was 
an  agent  attending  on  the  part  of  the  purchaser  to  super- 
intend the  building  of  the  ship,  to  approve  the  materials 
and  adopt  the  work  as  it  progressed;  and  other  important 
facts  were  proved,  such  as  marking  the  keel  with  the  name 
of  the  purchaser,  and  repeated  and  explicit  declarations  by 
the  builder  during  the  work,  that  she  was  his  ship,  and 
from  which  the  Court  inferred  the  intention  of  the  parties 
that  she  should  be  so  considered;  in  all  of  which  important 
respects  they  differ  widely  from  the  present  ease.  Besides, 
in  none  of  those  cases  was  there  any  stipulation  in  the  con- 
tract, as  in  this  case,  for  a  special  or  specific  delivery  of  the 
vessel  to  the  purchaser  in  a  distant  port,  subject  to  inspec- 
tion, if  required  by  him,  and  which,  of  course,  necessarily 


HALL  v.  GKEEN.  553 


negatives  any  idea  that  she  could  have  been  considered  by 
the  parties  to  be  the  property  of  the  purchaser,  either  in 
part,  as  the  work  proceeded,  or  in  the  whole  when  com- 
pleted, before  she  was  delivered  in  the  port  mentioned  and 
he  had  there  concluded  to  accept  her. 

But  it  is  a  mistake  to  suppose  that  the  case  of  Wood  v. 
Russell,  cited  on  the  other  side,  rests  on  the  principle  of 
appropriation,  as  it  is  termed,  under  a  contract  of  this 
kiud.  It  is  true  that  Abbott,  Ch.  J.,  adopting  for  the  mo- 
ment a  Scotch  notion,  made  use  of  some  expressions  in  an- 
nouncing the  decision  of  the  Court,  in  allusion  to  the  doc- 
trine of  appropriation ;  but  the  decision  itself  is  based  on 
no  such  principle.  On  the  contrary,  it  rests  mainly,  if  not 
entirely,  upon  the  fact  proved  on  the  trial,  that  the  builder 
during  the  progress  of  the  work,  and  before  his  bank- 
ruptcy, had  furnished  the  purchaser  with  a  carpenter's  cer- 
tificate that  the  ship  was  his,  and  had  been  built  for  him, 
in  order  to  obtain  her  registry  at  the  customs  under  the 
statute,  before  she  was  finished,  and  upon  which  the  pur- 
chaser had  made  his  affidavit  as  required,  that  she  was  his 
property  at  that  time.  In  Clark  v.  Spence  the  Court  relied 
upon  acts  and  declarations  manifesting  the  intention  and 
understanding  of  the  parties,  equally  strong,  and  accom- 
panied the  decision  with  some  expressions  of  hesitation 
and  reluctance,  on  the  ground  that  to  decide  otherwise 
might  seriously  affect  existing  contracts  entered  into  with 
reference  to  the  principle.  But  in  the  case  of  Woody.  Bell 
et  al,  85  Eng.  C.  L.  II.  781,  decided  as  late  as  the  year 
1856,  and  which  is  the  latest  decision  in  England  on  the 
question,  the  principle  ruled  in  these  cases  is  not  only 
shaken,  but  subverted;  for  the  Court  say  in  this  latter  case, 
that  the  appointment  of  a  superintendent  by  the  purchaser, 
to  approve  and  adopt  the  work  as  it  advances,  and  the  pay- 
ment of  the  instalments  of  the  purchase-money  by  him  as 
they  become  due,  are  not  of  themselves  sufficient  to  trans- 
fer the  ownership  of  the  vessel  as  the  work  upon  it  pro- 
gresses, to  the  purchaser,  but  it  must  depend  upon  the  in- 
tention of  the  parties.     The  doctrine  therefore,  as  it  now 

36 


554  COURT  OF  ERRORS  AND  APPEALS. 

stands  in  England,  has  resolved  itself  into  a  mere  question 
of  intention  as  to  this  matter  between  the  parties;  and 
tried  by  this  test,  I  have  already  said  enough  to  show  that 
no  such  intention  can  possibly  be  inferred  from  this  con- 
tract. 

But,  to  return  to  our  own  country.  I  will  now  refer  to  a 
recent  case  in  the  Court  of  Appeals,  in  the  State  of  New 
York,  in  which  the  English  cases  are  ably  reviewed,  and 
this  doctrine  of  appropriation  fully  considered,  and  in 
which  it  is  unequivocally  repudiated  and  renounced,  as 
never  having  been  a  part  of  the  common  law  of  this  coun- 
try. I  allude  to  the  case  of  Andrews  et  al.  v.  Dicrant  et  al., 
1  Kern.  Rep.  35.  It  happens  to  have  preceded  by  a  year 
the  last  case  which  I  have  cited  from  the  English  reports, 
and,  therefore,  the  judges  who  decided  it  had  not  the  ad- 
vantage of  the  qualification  and  exposition  which  the  Court 
of  Queen's  Bench  had  recently  given  to  the  doctrine  in  that 
country,  and  yet  it  rules  substantially  the  same  principle ; 
that  is  to  say,  that  in  contracts  of  this  nature  no  property 
in  the  ship  is  transferred  to  the  purchaser,  until  she  is 
finished  and  delivered,  unless  it  is  otherwise  stipulated 
between  the  parties.  And  this  may  now  be  considered  the 
settled  doctrine  on  the  subject  in  both  countries. 

C.  S.  Laytoji,  for  the  plaintiff  in  error:  After  the  thorough 
examination  of  the  principle  involved  in  this  case,  and  the 
citation  of  the  authorities  bearing  upon  it,  by  my  colleague, 
I  shall  have  occasion  to  add  but  little  on  the  subject.  It  is 
not  only  the  first  time  the  question  has  arisen  in  this  State, 
but  it  is  iu  itself  a  comparatively  new  question;  and,  there- 
fore, we  should  not  be  surprised  to  find  some  conflict  in 
the  decisions  upon  it.  In  regard  to  executory  contracts  of 
this  character,  and  in  relation  to  this  peculiar  species  of 
property,  it  rests  on  the  principles  of  the  commercial  and 
marine  law,  and  they  are  nowhere  as  clearly  and  definitively 
settled  as  the  principles  of  the  common  law  generally.  By 
the  common  law,  no  general  principle  is  better  established 
than  this,  that  where  a  contract  is  made  to  purchase  an 


HALL  v.  GKEEN.  555 


article  not  then  in  esse,  it  does  not  become  the  property  of 
the  purchaser  until  it  is  finished  and  delivered  to  him. 
And  yet,  when  the  contract  is  for  the  building  and  pur- 
chase of  a  ship,  as  agreed  upon  in  this  contract,  the  ship, 
as  she  is  so  built  and  paid  for  at  the  specific  stages  of  the 
work  upon  her,  is  appropriated  to  and  becomes  the  pro- 
perty of  the  purchaser  by  the  right  of  accession  or  con- 
structive delivery,  which  is  the  only  delivery  practicable 
under  such  circumstances;  and  the  intention  of  the  parties 
that  the  ownership  of  the  vessel,  as  she  is  thus  progres- 
sively built  and  paid  for,  should  be  transferred  to  the  pur- 
chaser, must  necessarily  be  inferred  from  the  very  nature 
and  essence  of  such  a  contract,  as  an  actual  transfer  of  the 
exclusive  manual  possession  of  the  property  at  such  stages, 
from  the  builder,  would  not  only  be  impracticable,  but 
would  violate  their  manifest  intention,  and  defeat  the 
object  of  the  contract. 

In  the  case  of  Wood  v.  Russell,  in  England,  the  Court 
held  that  the  payment  of  the  instalments  by  the  purchaser 
was  an  indication  of  the  intention  of  the  parties  to  vest 
the  property  in  him,  and  this,  with  other  circumstances 
proved  in  the  case,  were  considered  sufficient  to  vest  the 
property  in  him  by  appropriation  as  the  work  advanced. 
So  in  this  case  the  receipts  of  Tubbs  to  Hall,  as  the  work 
proceeded,  for  the  payments  made  on  account  of  it,  recit- 
ing that  the  same  were  received  on  account  of  "  his  sloop, 
which  he  (Tubbs)  was  then  building  for  him,"  must  be 
held  to  be  a  fact  as  pregnant  as  any  proved  in  that  case,  to 
show  that  Tubbs  then  considered  the  sloop  as  the  property 
of  Hall.  He  also  always  admitted  her  to  be  the  property 
of  Hall,  whilst  he  was  building  her,  and  never  denied  it, 
as  was  the  case  in  Wood  v.  Bell  et  al.  In  the  case  of  An- 
drews  ct  al.  v.  Durant  et  ah,  so  much  relied  on  by  the  other 
side,  from  New  York,  Denio, «/.,  remarks  :  "  Where,  during 
the  course  of  the  transaction,  the  vessel,  or  other  thing 
agreed  to  be  built,  is  identified  and  appropriated,  so  that 
the  builder  would  be  bound  to  complete  and  deliver  that 
particular  thing,  and  could  not,  without  violating  his  eon- 


556     COURT  OF  ERRORS  AND  APPEALS. 

tract,  substitute  another  similar  to  it,  though  otherwise 
corresponding  with  the  agreement,  there  would  seem  to 
be  more  reason  for  holding  that  the  property  was  transfer- 
red." Now,  I  ask,  if  after  the  work  on  this  sloop  had  been 
two-thirds  finisbed  by  Tubbs,  and  paid  for  by  Hall,  and 
one  hundred  dollars  over  and  above  the  amount  due  from 
him,  the  latter  had  not  acquired  such  a  right  to  the  specific 
sloop  then  under  construction  by  the  former,  and  if  he 
could  have  substituted  another  corresponding  to  it  in  all 
respects,  without  violating  his  contract  ?  And  if  he  could 
not,  must  it  not,  as  a  matter  of  course,  be  considered  not 
only  as  identified,  but  as  appropriated  to  the  purchaser? 

In  addition  to  the  authorities  cited  by  my  colleague,  and 
to  show  that  the  principle  for  which  we  contend  is  sanc- 
tioned by  respectable  text-writers,  both  in  this  country  and 
in  England,  I  will  refer  the  Court  to  Abb.  on  Ship.  3 ;  Ross 
on  Contracts  of  Sale,  85  ;  Law  Libr.  557 ;  Story  on  Contr.,  sees. 
19,  739,  813;  Story  on  Sales,  sees.  233,  234,  315,  316;  Reed 
et  al.  v.  Fairbanks  et  al.,  24  Eng.  L.  <f  E.  Rep.  220. 

Gilpin,  Ch.  J.,  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  trover,  brought  by  the  plaintiffs  be- 
low, for  the  purpose  of  recovering  the  value  of  an  unfinished 
sloop  or  vessel.  The  facts  are  briefly,  but  substantially,  as 
follows : 

James  II.  Tubbs,  by  trade  a  shipbuilder,  on  the  thirty- 
first  of  August,  1854,  entered  into  a  contract,  under  seal, 
with  John  W.  Hall,  the  defendant  below,  by  which  he 
agreed  to  build  and  complete  for  him,  in  a  workmanlike 
manner,  the  hull  of  a  sloop, — to  spar  her,  put  travellers  in 
her,  and  "  deliver  her  in  Philadelphia  by  the  first  day  of 
March,  1855,  everything  complete  to  pass  the  inspection 
of  two  persons,  if  required  by  Hall."  The  contract  par- 
ticularly specifies  the  dimensions  of  the  sloop,  and  the 
kind  of  materials  to  be  used  in  her  construction.  And 
John  "W".  Hall,  on  his  part,  agreed  to  pay  Tubbs  for  the 
sloop  at  the  rate  of  twenty-eight  dollars  per  ton ;  one-third 
to  be  paid  when  the   keel,  stem,  stern-posts,  and  floors 


HALL  v.  GREEN.  557 


should  be  laid;  one-third  when  the  deck-frame  and  deck 
should  be  laid;  and  the  other  third  when  the  sloop  should 
be  "delivered  in  Philadelphia  all  complete,  and  according 
to  contract."  And  for  the  faithful  performance  of  this 
contract  they  bound  themselves  to  each  other  respectively, 
in  the  penal  sum  of  one  thousand  five  hundred  dollars. 

The  first  instalment  was  paid,  according  to  contract,  on 
the  10th  of  January,  1855;  the  second  was  paid  on  the  16th 
of  May  following,  and  on  the  8th  of  June  the  sum  of  one 
hundred  dollars  was  advanced  on  account  of  the  third  in- 
stalment. But  on  the  4th,  5th,  6th,  7th,  and  9th  of  June, 
1855,  whilst  the  sloop  was  still  on  the  stocks,  in  an  un- 
finished state,  and  in  the  possession  of  Tubbs,  sundry  writs 
of  fieri  facias  were  issued  against  him  by  his  creditors, 
under  which  she  was  levied  on  and  taken  in  execution. 
She  was  regularly  inventoried  and  appraised;  and  was 
afterward,  on  the  14th  of  July,  1855,  put  up  and  sold  at 
public  auction  by  Constable  Calhoun,  under  and  by  virtue 
of  the  process  then  in  his  hands,  to  George  Green  et  al., 
the  plaintiffs  below.  It  appears  further,  that  in  July,  some 
days  prior  to  the  sale,  but  after  the  levy  of  the  executions 
upon  it,  Hall,  the  defendant  below,  took  possession  of  the 
sloop;  and  on  the  13th  of  the  same  month  procured  from 
Tubbs  an  instrument  of  writing,  commonly  called  a  ship- 
carpenter's  certificate.  Hall  afterwards  finished,  and  re- 
moved her  beyond  the  jurisdiction  of  the  courts  of  this 
State. 

Upon  these  facts,  the  question  presented  for  the  con- 
sideration of  the  Court  is,  whether  the  unfinished  sloop, 
at  the  time  of  the  levy  of  the  writs  of  fieri  facias,  belonged 
to  James  II.  Tubbs,  the  builder,  or  to  John  W.  Hall,  the 
defendant  below.  If  she  belonged  to  Tubbs,  then,  upon 
the  sale  by  the  constable,  the  property  in  her  passed  to 
George  Green  et  al.,  the  plaintiffs  below.  This  is  a  ques- 
tion of  first  impression  in  this  State,  and  its  solution  must 
depend  on  the  construction  to  be  given  to  the  contract 
between  the  parties.  It  was  undoubtedly  competent  for 
them  to  have  agreed,  in  express  terms  (if  such  had  been 


558  COURT  OF  ERRORS  AND  APPEALS. 

their  intention),  that  the  property  in  the  unfinished  sloop 
should  pass  from  Tubbs  and  vest  in  Hall,  upon  payment 
by  him  of  the  first  instalment.    But  they  have  not  done  so. 

"When  a  man  contracts  with  another  for  the  building  of 
a  vessel  or  other  thing,  not  then  in  being,  for  a  given  price, 
the  general  rule  is,  that  no  property  in  it  vests  in  the  per- 
son for  whom  it  is  to  be  constructed,  during  the  progress 
of  the  work  upon  it,  nor,  indeed,  until  it  is  fully  completed 
and  delivered,  or  is,  at  least,  ready  for  delivery.  This  prin- 
ciple or  general  rule  is  fully  recognized  in  Mucklow  v.  Man- 
gles, 1  Taunt.  318;  Towers  v.  Osborne,  1  Strange,  506;  Merrit 
v.  Johnson,  7  Johns.  473;  Andrews  et  al.  v.  Durant  et  al.,  1 
Kernan,  35;  and  in  many  other  cases;  and  it  has  never,  to 
our  knowledge,  been  questioned ;  but,  on  the  contrary,  it 
has  been  uniformly  considered  as  sound  law.  The  prin- 
ciple, that  where  a  party  orders  goods  to  be  made,  the 
materials  belong  to  the  maker  while  the  goods  are  in  pro- 
gress of  being  manufactured,  is  too  well  settled  to  admit 
of  dispute. 

The  precise  question  here,  however,  which  we  are  called 
on  to  decide  is,  whether  the  payment  of  the  first,  or  two 
first  instalments  as  the  work  progressed,  according  to  the 
terms  of  the  contract,  is  sufficient  to  take  this  case  out  of 
the  general  rule,  and  vest  the  property  in  Hall.  The  coun- 
sel for  the  defendant  claim  that,  as  the  sloop  was  to  be 
built  upon  a  special  contract,  the  terms  of  which  required 
that  given  portions  of  the  price  should  be  paid  according 
to  the  progress  of  the  work,  the  payment  of  these  portions 
or  instalments  as  they  became  due,  had  the  effect  in  law, 
and  according  to  the  intention  of  the  parties,  of  vesting 
the  property  in  the  sloop  in  their  client ;  and  they  rely  for 
support  mainly  upon  the  cases  of  Wood  v.  Russell,  7  Eng. 
C.  L.  R.  310 ;  Clark  v.  Spenee,  31  Eng.  C.  L.  R.  107;  Wood 
v.  Bell,  85  Eng.  C.  L.  R.  771 ;  Bells  Principles  of  the  Law  of 
Scotland,  486. 

The  case  of  Wood,  v.  Russell  is  the  first  in  which  the  doc- 
trine of  appropriation  on  payment  of  instalments  has  been 
announced  in  England;  and  as  the  question  was  not  neces- 


HALL  v.  GREEN.  559 


sarily  involved  in  the  decision,  it  is  at  most  but  an  extra- 
judicial opinion.  Chief  Justice  Abbott  says,  in  express 
terms :  "  We  are  not  called  to  decide  how  far  that  payment 
vests  the  property  in  the  defendant,  because,  here  Paton 
signed  the  certificate  to  enable  the  defendant  to  have  the 
ship  registered  in  his  (the  defendant's)  name,  and  by  that 
act  consented,  as  it  seems  to  us,  that  the  general  property 
in  the  ship  should  be  considered  from  that  time  as  being 
in  the  defendant."  Again,  he  says  :  "  In  order  to  register 
the  ship  in  the  defendant's  name,  an  oath  would  be  requi- 
site that  the  defendant  was  the  owner,  and  when  Paton 
concurred  in  what  he  knew  was  to  lead  to  that  oath,  must 
he  not  be  taken  to  have  consented  that  the  ownership 
should  really  be  as  that  oath  described  it  to  be  ?"  So  that 
it  is  perfectly  apparent,  the  judgment  of  the  Court  pro- 
ceeded upon  a  ground  totally  distinct  from  the  doctrine  of 
appropriation.  And  we  may  therefore,  without  any  disre- 
spect, be  permitted  to  consider  what  is  said  by  the  Chief 
Justice  in  regard  to  this  doctrine  as  a  mere  dictum.  This 
case  was  decided  in  the  year  1822,  and  was  followed,  after 
the  lapse  of  thirteen  years,  by  the  case  of  Clark  v.  Spence, 
decided  in  the  year  1835.  In  the  meantime  the  doctrine 
had  been  acted  on  by  persons  engaged  in  shipbuilding, 
and  had  been  recognized  by  the  courts ;  but  it  had  not,  in 
any  instance,  so  far  as  we  know,  met  with  the  cordial  ap- 
proval of  the  English  judges.  Indeed,  it  seems  evident 
that  although  recognized  as  authority,  the  principle  had 
been  viewed  with  suspicion  and  followed  with  doubt  and 
hesitation. 

Mr.  Justice  Williams,  who  delivered  the  judgment  of  the 
Court  in  (.'lark  v.  Spence,  seems  to  lay  some  stress  upon  the 
circumstance  of  there  being,  in  that  case,  a  superintendent 
appointed  to  inspect  and  approve  of  the  materials,  and  the 
work  as  it  progressed;  yet,  after  all,  it  is  apparent  the  case 
was  finally  decided  mainly,  if  not  solely,  on  the  authority 
of  Wood  v.  Russell,  and  it  can  hardly,  therefore,  be  con- 
sidered as  an  authority  in  itself.  We  come  now  to  Wood  v. 
BJJ,  5  Ellis  $  Blackburn,  772  [85  Eng.  C.  L.  R.  771  J;  which 


560  COURT  OF  ERRORS  AND  APPEALS. 

was  decided  in  the  year  1856.  This  case  is  similar  in  most 
respects  to  Wood  v.  Russell  and  Clark  v.  Spence.  There  was 
an  inspector  appointed,  to  inspect  and  approve  the  work, 
and  the  ship  was  to  be  paid  for  by  instalments,  during  the 
progress  of  the  work.  But  Lord  Chief  Justice  Campbell, 
who  delivered  the  opinion  of  the  Court,  does  not  appear  to 
have  considered  either  of  these  circumstances,  taken  alone, 
as  conclusive  upon  the  question  of  property ;  for  he  relies 
principally  upon  other  facts,  as  indicating  the  intention  of 
the  parties,  that  the  property  in  the  unfinished  ship,  and 
the  materials  to  be  used  in  her  construction," should  vest  in 
the  plaintiff,  Wood.  He  says :  "  But  two  facts  remain. 
Joyce,  at  the  instance  of  the  plaintiff,  punches  his  name 
on  the  keel  expressly  for  the  purpose  of  securing  her  to  the 
plaintiff ;  and  although  he  refuses,  after  this,  to  execute  a 
formal  assignment  of  her  to  the  plaintiff,  he  at  the  same 
time  admits  her  to  be  the  plaintiff's  property.  Both  these  cir- 
cumstances occurred  when  Joyce  was  the  master  of  his 
property,  and  appear  to  us  of  the  greatest  importance;  they 
throw  a  light  on  the  preceding  circumstances,  and  show 
they  are  to  be  understood  in  so  far  as  they  were  in  them- 
selves ambiguous." 

The  doctrine  of  appropriation,  announced  in  Wood  v. 
Russell,  and  afterwards  recognized  and  adopted  in  Clark  v. 
Spence,  has  never,  we  believe,  been  followed  in  this  country. 
Mcrritt  v.  Johnson,  7  Johns.  473,  and  Andrews  v.  Durant,  1 
Kcrnan,  35,  are  both  cases  of  contracts  for  building  vessels 
to  be  paid  for  by  instalments  as  the  work  progressed,  and 
in  which  there  were  superintendents  appointed  to  inspect 
and  approve  the  work,  but  they  were  both  decided  accord- 
ing to  the  general  rule  which  we  have  stated.  In  the  for- 
mer case,  the  doctrine  of  appropriation  is  entirely  ignored  ; 
and  in  the  hitter,  the  judges  of  the  Court  of  Appeals,  after 
an  elaborate  and  able  review  of  the  English  decisions,  re- 
pudiated it  altogether. 

But,  after  all,  the  cases  which  have  been  cited  are  prin- 
cipally serviceable  as  lights  to  guide  our  judgment  to  a 
correct  conclusion  in  respect  to  the  true  meaning  or  inten- 


RICHAEDSON  v.  EAUGHLEY.  561 

tion  of  the  partie8.  In  this  case  the  contract  is  in  writing 
under  the  hands  and  seals  of  the  parties,  and  is  executory 
in  its  terms.  It  is  a  contract  for  the  building  of  a  thing 
not  yet  in  being ;  in  which  nothing  is  said  as  to  when  the 
property  should  vest  in  Hall.  Can  we  say,  then,  with  any 
fair  show  of  reason,  because  it  contains  a  provision  for 
payment  of  the  price  by  instalments  according  to  the  pro- 
gress of  the  work,  that  it  was  the  intention  of  the  parties 
the  property  in  the  unfinished  sloop  should  vest  in  Hall 
upon  payment  of  the  first  instalment?  We  cannot  think 
this  would  be  a  fair  or  reasonable  construction  of  the  con- 
tract; especially,  as  he  was  not  bound  to  accept  the  sloop 
until  she  had  been  completed,  and  had  passed  inspection 
in  Philadelphia  upon  her  delivery  there,  according  to  the 
terms  of  the  contract.  We  therefore  consider  that  the 
judgment  below  should  be  affirmed. 


The  State,  for  the  use  of  Rebecca  A.  Richardson,  v.  Shad- 
rach  Raughley  and  David  Taylor. 

In  a  will  which  contained  the  following  residuary  bequest,  "  And  all 
the  rest  of  my  estate,  after  my  just  debts  are  paid,  to  be  equally  divided 
among  all  my  grandchildren  of  my  five  daughters,  named  J.  V.,  wife  of 
T.  V.,  andR.  K.,  wife  of  J.  R.,and  A.  T.,  wife  of  D.  T.,andE.  H.,wife 
of  J.  H.,  and  N.  ~W.,  wife  of  D.  W.,  the  money  to  be  paid  by  my  execu- 
tors when  they  arrive  at  lawful  age."  Held,  that  the  grandchildren  in 
bein^  at  the  death  of  the  testator  only  were  entitled  to  the  residue, 
and  that  a  child  of  one  of  the  daughters  named,  born  after  the  death  of 
the  testator,  could  not  be  let  in  to  participate  in  the  benefits  of  the  In- 
quest ;  the  period  of  distribution  being  fixed  by  import  of  the  bequest 
at  the  time  of  his  death,  and  the  period  of  payment  or  enjoyment  only 
being  postponed  until  they  should  arrive  at  lawful  age. 

This  was  an  action  of  debt  on  a  testamentary  bond,  for 
the  use  of  Rebecca  A.  Richardson,  against  Shadrach  Raugh- 
ley, who  was  the  surviving  executor  of  the   last  will  and 


562     COURT  OF  ERRORS  AND  APPEALS. 

testament  of  Shadrach  Raughley,  deceased,  and  David 
Taylor,  who  was  the  surviving  surety  in  the  bond,  in  the 
Superior  Court  for  Kent  County,  and  came  up  on  a  case 
stated  and  question  of  law  reserved,  for  a  hearing  before 
all  the  Judges  in  this  Court.  The  Chancellor  and  Judges 
all  sitting. 

The  facts  of  the  case  were  as  follows :  Shadrach  Raugh- 
ley,  deceased,  late  of  Kent  County,  died  on  the  20th  day 
of  June,  1833,  having  on  the  11th  day  of  the  same  month 
made  his  will,  which  was  afterwards  duly  proved  and  al- 
lowed before  the  Register  of  Wills  for  the  County,  by  the 
residuary  clause  of  which,  after  devising  his  real  estate 
and  bequeathing  certain  general  legacies,  he  disposed  of 
the  residue  of  his  estate,  consisting  entirely  of  personalty, 
in  the  following  bequest :  "  And  all  the  rest  of  my  es- 
tate, after  my  just  debts  are  paid,  to  be  equally  divided 
amongst  all  my  grandchildren  of  my  five  daughters, 
named,  Jane  Vickery,  wife  of  Thomas  Vickery,  and  Re- 
becca Richardson,  wife  of  James  Richardson,  and  Ann 
Taylor,  wife  of  David  Taylor,  and  Elizabeth  Hopkins, 
wife  of  John  Hopkins,  and  Xancy  AVighett,  wife  of  Daniel 
Wighett,  the  money  to  be  paid  by  my  executors  when 
they  arrive  at  lawful  age."  Shadrach  Raughley,  one  of 
the  defendants,  and  John  Raughley,  since  deceased,  sons 
of  the  testator,  were  appointed  executors,  and  duly  took 
upon  themselves  the  execution  of  the  will. 

At  the  time  of  the  death  of  the  testator,  his  daughter 
Jane  Vickery  had  five  children  born  and  then  living,  the 
eldest  of  whom  and  who  was  the  oldest  of  the  testator's 
grandchildren  then  in  being,  attained  the  age  of  twenty- 
one  years  on  the  loth  of  June,  1838 ;  his  daughter  Re- 
becca Richardson  had  six  children  born  and  then  living, 
and  two  children  born  after  his  death,  of  whom  the  party 
for  whose  use  the  suit  was  brought,  Rebecca  A.  Richard- 
son, was  one,  born  on  the  11th  of  November,  1*34  :  his 
daughter  Ann  Taylor  had  at  the  time  of  his  death  live 
children  born  and  then  living;  his  daughter  Elizabeth 
Hopkins  had  one  child  born  and  then  living,  whilst  his 


KICHAKDSON  v.  RAUGHLEY.  563 

daughter  Mary  Wighett  had  two  children  born  and  then 
living,  and  three  others  born  after  his  decease  and  now 
living.  On  the  settlement  of  the  estate  of  the  testator  by 
his  executors,  there  remained  in  their  hands  for  distribu- 
tion under  the  residuary  clause  above  mentioned,  a  resi- 
due of  $4645. 21£,  and  on  the  11th  day  of  November, 
1839,  the  year  succeeding  the  arrival  at  age  of  the  oldest 
of  the  testator's  grandchildren  in  being  at  the  time  of  his 
decease,  they  passed  their  distributive  account  of  the  said 
residue  before  the  register,  whereby  they  distributed  the 
same  among  such  only  of  the  grandchildren  as  were  in 
being  at  the  time  of  his  death,  wholly  omitting  therein  to 
notice,  or  take  any  account  of  the  party  for  whose  use  the 
suit  was  brought,  or  any  of  the  other  grandchildren  who 
were  born  after  the  testator's  death,  but  all  of  whom  were 
born  before  his  eldest  grandchild  had  attained  the  age  of 
twenty-one  years.  That  the  said  Rebecca  A.  Richardson 
had  arrived  at  age  on  the  11th  day  of  November,  1855, 
and  that  the  suit  was  brought  for  her  use  to  recover  her 
just  and  proportionable  share  of  the  said  residue,  as  one  of 
the  testator's  grandchildren,  equally  entitled  thereto  with 
the  grandchildren  in  being  at  the  time  of  his  death. 

The  question  of  law  reserved  was,  whether  the  party  for 
whose  use  the  suit  had  been  brought,  was  entitled  to  re- 
cover on  the  foregoing  statement  of  facts  ?  If  so,  judgment 
to  be  rendered  in  her  favor  for  the  one-twenty-third  part 
of  said  residue  with  interest  from  the  date  of  the  distribu- 
tive account;  but  if  not,  judgment  to  be  rendered  for  the 
defendants. 

Comegys,  for  the  plaintiff":  The  principle  of  law  and  rule 
of  construction  in  bequests  of  this  kind  on  which  the  plain- 
tiff" relies  for  a  recovery  in  this  case  is  this  :  where  the  be- 
quest is  to  a  class  of  individuals  generally,  as  to  children 
or  grandchildren  generally,  without  naming  them  indi- 
vidually, payable  at  a  future  time,  as  after  a  life  estate 
given  therein  to  another,  or  at  the  age  of  twenty-one,  or 
marriage,  all   those  answering  the  general  description,  or 


564  COURT  OF  ERRORS  AND  APPEALS. 

falling  within  the  class  born  before  the  time  the  property 
is  to  vest  in  possession,  are  entitled  to  equal  shares  in  the 
bequest  with  those  in  being  at  the  time  of  the  testator's 
death.  And  this  rule  of  construction  is  not  only  reason- 
able, just  and  equitable  in  its  application  to  such  bequests, 
but  it  has  long  been  favored  by  the  Courts,  as  it  enlarges 
the  bounty  of  the  testator,  and  lets  in  the  younger,  and 
perhaps  more  helpless  and  dependent  offspring  with  the 
older  children,  to  participate  alike  in  its  benefits,  and  for 
whom  he  is  equally  bound  to  provide.  And  notwithstand- 
ing the  bequest  is  immediate  and  vests  in  interest  on  the 
death  of  the  testator,  yet,  if  the  period  of  distribution  and 
the  time  when  it  is  to  vest  in  possession  is  postponed,  the 
principle  is  the  same,  for  in  that  case  also,  the  after-born 
children  or  grandchildren  will  take  equally  with  those  who 
were  in  existence  at  the  time  of  his  death.  Roper  on  Leg. 
48,  54;  2  Mad.  Chanc.  21,  22;  2  Powel  on  Dev.  306  ;*2 
Jarm.  on  Wills,  73;  2  Wins,  on  Errs.  797;  Ally.  Genl.  v. 
Crispin,  1  Bro.  Ch.  Cases,  386  ;  Gilmore  v.  Severn,  Ibid.  582 ; 
Andrews  v.  Partington,  3  Ibid.  401 ;  Hughes  v.  Hughes,  Ibid. 
401 ;  Prescott  v.  Long,  2  Ves.  Jun'r,  690 ;  Hoste  v.  Pratt,  3 
Ibid.  730 ;  Middleton  v.  Messenger,  5  Ibid.  136 ;  Harrington 
v.  Tristram,  6  Ibid.  344;  Walker  v.  Shore,  15  Ibid.  123; 
Crone  v.  Ode!!,  1  Ball  ,f  Bcatty,  449;  Blaise  v.  Burgh,  2 
Bear.  221;  Vefflis  v.  Goldsehmidt,  2  Meriv.  417;  Jenkins  v. 
Freyer,A  Paige,  47;  Swinkmv.  Legare,  2  Me  Cord's  (Ik  Pep. 
440;  Vanhookv.  Rogers'  Err.  3  Murph.  N.  C.  Rep.  ,178; 
De  Veaurv.  J)e  Veaux,  1  Strob.  Eq.  Rep.  (S.  C.)  228;  Looek- 
erman  v.  McBlair,  6  Gill.  177. 

W.  Saulsbury,  for  the  defendants  :  There  in  but  one  ques- 
tion involved  in  this  case,  and  that  is,  when  was  this  be- 
quest distributable?  We  contend  that  it  not  only  vested 
in  interest  immediately  on  the  death  of  the  testator,  in  the 
grandchildren  then  living  and  in  being,  but  was  also  im- 
mediately distributable  among  them  at  that  time  by  the 
terms  of  the  bequest  and  the  intention  of  the  testator,  al- 
though not  actually  to  be  enjoyed  and  received  in  posses- 


RICHARDSON  v.  RAUGIILEY.  565 

sion  by  them,  until  they  respectively  attained  the  age  of 
twenty-one  years.  The  numerous  cases  cited  on  the  other 
side  do  not  involve  this  point,  and  consequently  do  not 
present  this  subordinate  distinction  well  established  and 
laid  down  in  the  books.  The  time  of  payment  is  not  ne- 
cessarily the  time  of  distribution  of  the  legacy ;  for  it  may 
be  distributable,  though  the  time  of  payment  may  be  post- 
poned to  a  future  period,  and  in  such  cases,  the  children 
or  grandchildren  born  after  the  death  of  the  testator  will 
take  no  part  in  it.  Frectnantle  v.  Freemantle,  1  Cox,  248. 
The  cases  cited  on  the  other  side  were  either  cases  in 
which  the  bequests  were  contingent  in  their  nature  and 
not  vested  as  in  this  case,  or  where  there  was  an  inter- 
vening life  estate  to  another  in  the  fund,  or  the  bequest 
was  in  trust  to  another  for  the  benefit  of  the  legatees,  and 
in  none  of  which  cases,  of  course,  could  there  be  any  dis- 
tribution in  effect,  or  intended  by  the  testator,  until  the 
future  time  of  payment  had  arrived.  In  those  cases  it  was 
not  a  present  gift  to  the  children  or  grandchildren,  as  in 
this  instance,  with  the  time  of  payment  only  postponed  ; 
but  the  gift  itself  in  effect  was  at  the  future  period  indi- 
cated, and  which,  of  course,  would  let  in  the  after-born 
children.  But  here  the  gift  is  immediate,  to  be  equally 
divided,  the  money  to  be  paid  by  his  executors  when  they 
arrived  at  lawful  age.  The  words  of  the  bequest  as  they 
stand,  naturally  and  necessarily  import  a  present  and  im- 
mediate division  amongst  his  grandchildren  by  the  five 
daughters  named,  the  money  not  to  be  paid  by  his  execu- 
tors, however,  until  they  respectively  attained  lawful  age. 
When  such  is  the  tenor  of  the  bequest,  it  requires  no  cita- 
tion of  authorities  to  show  that  none  but  the  grandchil- 
dren living  at  the  death  of  the  testator  could  have  been 
intended  by  him  to  participate  in  the  benefits  of  it. 

D.  31.  Bates,  on  the  same  side :  Had  the  testator  in- 
tended to  embrace  the  after-born  grandchildren  within  the 
scope  and  operation  of  this  bequest,  would  he  have  been 
content  to  express   his  meaning  in   the  words   here  em- 


566  COURT  OF  ERRORS  AND  APPEALS. 

ployed  ?  As  the  language  stands  on  the  face  of  the  will, 
it  is  susceptible  of  no  other  construction  than  that  which 
my  colleague  has  given  it. 

But  as  much  as  the  Courts  have  been  inclined  to  enlarge 
the  construction  in  devises  and  bequests  to  children  as  a 
class,  in  order  to  include  as  many  of  the  class  as  possible, 
and  as  far  as  this  rule  of  construction  has  been  pressed  in 
the  decisions  which  have  been  cited,  it  has  never  been 
pressed  far  enough  to  reach  this  case  and  let  in  the  after- 
born  grandchildren  of  the  testator  with  the  grandchildren 
in  being  at  his  death,  to  the  benefits  of  this  bequest.  The 
distinction  is  this :  when  the  division  of  the  fund  among 
the  class  is  postponed  to  a  future  period — not  the  payment 
of  the  shares  merely — the  children  coming  in  esse  in  the 
meantime  will  take;  but  when  the  gift  and  the  division 
or  distribution  into  shares  is  immediate  on  the  death  of 
the  testator,  and  the  payment  of  the  shares  merely  is  post- 
poned to  a  future  time,  then  they  are  not  let  in.  Because 
the  fact  that  the  shares,  so  divided  and  ascertained,  are  to 
remain  in  the  hands  of  the  executors  until  the  time  of  pay- 
ment arrives,  does  not  alter  or  affect  the  case  any  more 
than  if  they  were  in  the  hands  of  guardians,  to  be  paid 
on  their  arrival  at  age.  In  support  of  this  distinction, 
which  is  clear  and  well  established,  I  will  refer  to  Bop.  on 
Leg.  48 ;  Horsley  v.  Chaloner,  2  Vcs.  Sen'r,  83 ;  Hill  v.  Chap- 
man, 1  Ves.  Jun'r,  405;  Singleton  v.  Gilbert,  1  Cox,  67;  Hales 
v.  Hales,  cited  in  Congreve  v.  Congreve,  1  Bro.  Ch.  Cases,  530; 
Isaac  v.  Isaac,  Amh.  348  ;  Frcemantle  v.  Freemantle,  1  Cox, 
248;  Davidson  v.  Dallas,  14  Ves.  Jun'r,  575;  Kevern  v.  Wil- 
liams, 7  Eng.  Ch.  Bep.  375.  These  are  all  cases  in  which 
the  distinction  I  have  taken  is  fully  recognized  and  estab- 
lished. But  if  the  Court  will  critically  examine  all  the 
cases  eited  on  the  other  side,  they  will  find  that  they  are 
all  cases  of  contingent,  not  vested  bequests;  as  bequests  at 
the  age  of  twenty-one,  or  at  or  after  the  death  of  an  inter- 
mediate legatee  of  the  fund  for  life,  or  when  or  in  case  the 
said  children  should  arrive  at  the  age  of  twenty-one ;  and 
in  which,  of  course,  there  could  be  no  vesting,  much  less 


RICHARDSON  v.  RAUGHLEY.  567 

any  division  or  distribution  of  the  bequest  until  such  future 
period  arrived. 

Comegys,  in  reply  :  The  words,  "  equally  to  be  divided," 
which  occur  in  this  bequest,  do  not  import,  either  in  them- 
selves or  in  the  design  of  the  testator,  an  immediate  dis- 
tribution of  the  fund,  on  his  decease,  among  the  grand- 
children then  in  life  and  being,  but  import  the  same  thing 
as  if  he  had  substituted  for  them  the  words,  "to  be  paid;" 
and  had  I  time,  authorities  might  be  found  to  show  that 
such  is  their  legal  interpretation. 

But  it  is  alleged  on  the  other  side,  that  the  cases  which 
I  have  cited  are  all  cases  of  contingent,  not  vested  bequests. 
This,  however,  is  not  so.  In  the  case  of  the  Attorney-Gene- 
ral v.  Crispin,  that  point  was  made,  and  the  Lord  Chan- 
cellor expressly  declared  that  it  was  a  vested  bequest  on  the 
death  of  the  testator,  and  that  the  after-born  children  must 
be  let  in.  In  this  case,  however,  as  the  counsel  on  the 
other  side  have  chosen  to  present  it,  the  question  is,  when 
was  the  period  for  the  distribution  of  the  fund  among  the 
grandchildren?  It  was  when  any  one  of  the  legatees  had 
a  right  to  demand  his  share  of  it,  and  that  could  not  be 
until  the  eldest  of  them  arrived  at  age,  when  it  was  pay- 
able, and  there  was  no  period  for  the  division  or  distribu- 
tion of  the  fund  among  them,  and  there  could  be  none, 
prior  to  that  time. 

The  case  of  Hill  v.  Chapman,  cited  on  the  other  side,  has 
no  application  to  this  case.  The  same  may  be  said  of  Sin- 
gleton v.  Gilbert.  In  the  ease  of  Isaac  v.  Isaac,  the  testator 
did  not  know  whether  his  niece  had  children,  and  added, 
"  if  she  had  no  children,"  then  over  to  others;  from  which 
it  was  very  properly  inferred  that  he  had  reference  to  such 
children  as  she  might  then  have.  In  the  case  of  Freemantle 
v.  Freemantle,  the  testator  directed  certain  shares  of  stock 
to  be  transferred  to  the  children;  from  which  it  might  well 
be  concluded  that  he  intended  the  distribution  to  be  im- 
mediate, and  to  be  only  among  the  children  then  in  exist- 
ence.   The  other  cases  cited,  when  properly  considered,  do 


568  COURT  OF  ERRORS  AND  APPEALS. 

not  conflict  with  the  construction  for  which  I  have  con- 
tended. At  all  events,  one  thing  is  certain,  the  other  side 
have  no  warrant  for  saying  that  the  cases  to  which  I  have 
referred,  in  support  of  my  construction  of  the  bequest  in 
question,  are  all  cases  of  contingent  legacies,  for  in  no  less 
than  six  of  them  the  bequests  were  expressly  held  by  the 
Court  to  be  vested  legacies  on  the  death  of  the  testator. 

Harrington,  Ch.,  announced  the  decision  of  the  Court. 

The  bequest  in  this  case  was  a  gift  of  the  residue  to  the 
grandchildren  (children  of  the  five  daughters  mentioned), 
divisible  at  the  death  of  the  testator,  and  payable,  for  con- 
venience of  administration,  one  year  after,  under  the  sta- 
tute, if  the  testator  had  not  enlarged  the  time  of  payment. 
It  was  therefore  vested  at  the  testator's  death  in  the  chil- 
dren of  these  five  daughters  who  were  then  in  being.  De- 
bitum  then  ;  solvendum  by  the  law  of  administration  one 
year  after.  But  by  the  testator's  directions,  when  these 
grandchildren  should  arrive  at  lawful  age.  The  words  of 
the  will  are:  "And  all  the  rest  of  my  estate,  after  my  just 
debts  are  paid,  to  be  equally  divided  amongst  all  my  grand- 
children of  my  five  daughters,  <.v.c,  the  money  to  be  paid 
by  my  executors  when  they  arrive  at  lawful  age;"  and  the 
language  imports  a  present  distribution  and  vesting  of  the 
residue  at  the  death  of  the  testator  among  the  grandchil- 
dren then  in  esse,  the  money  to  be  paid  in  futuro  ;  that  is 
to  say,  on  their  arrival  at  lawful  age.  But  the  time  of 
payment  when  postponed,  as  in  this  case,  does  not  change 
or  divest  the  rights  of  the  distributees  or  legatees,  which 
were  ascertained  and  fixed  at  the  period  of  the  distribution 
of  the  residue  among  them;  and  which  must,  of  course,  ex- 
clude any  grandchildren  born  after  that  period.  This  dis- 
tinction is  fully  sustained  and  recognized  by  what  is  said 
by  the  Court  in  the  cast's  of  Andrews  v.  Partington,  3  Liro. 
Cb.  Co.  401;  Hughes  v.  Hughes,  Ibid.  352,  4:54;  Barringtoii 
v.  Tristram,  i)  Yes.  Jnn'r,  344;  Walker  v.  Shore,  If)  Yes.  Jun'r, 
123;  HOi  v.  Hale,  cited  in  Ellison,  v.  Aireg,  11  Yes.  112; 
Hursleg  v.  Chaloner,  2    Yes.  83;   Singh  ton  v.  Gilbert,!  Cox, 


STATE  use  of  DAVIS'  EXR.  v.  ROGEES.       569 

67 ;  Hill  v.  Chapman,  1  Ves.  Jun'r,  405 ;  Davidson  v.  Dallas, 
14  Ves.  Jun'r,  576 ;  Kevern  v.  Williams,  7  Eng.  Ch.  R.  375. 
The  rule,  however,  is  different  where  the  period  of  distri- 
bution, or  division  of  the  legacy,  as  well  as  the  time  of 
payment  or  enjoyment  is  postponed,  by  the  direction  or  ap- 
parent intention  of  the  testator ;  or  where  the  fund  is  given 
in  trust  to  be  distributed,  or  paid  by  trustees  at  a  future 
time  among  the  children ;  or  it  is  limited  over  to  take 
effect  after  a  preceding  bequest  of  it  to  another  for  years, 
or  for  life,  or  on  some  future  contingency  which  precludes 
its  taking  effect  as  a  present  gift  to  them ;  in  all  which 
cases  the  rule  of  construction  is  that  the  after-born  children 
coming  into  existence  in  the  meanwhile,  must  be  let  in  to 
an  equal  participation  in  the  bequest.  In  this  case,  there- 
fore, the  plaintiff  is  not  entitled  to  recover,  and  this  opinion 
must  be  certified  to  the  court  below. 


The  State,  for  the  use  of  Peter  A.  Browne,  Executor 
and  Trustee  under  the  last  Will  and  Testament  of 
Samuel  B.  Davis,  deceased,  v.  William  II.  Rogers. 

Pending  proceedings  in  review,  and  on  an  issue  ofdevisavit  vel  non  to  set 
aside  a  will  admitted  to  probate,  and  on  which  letters  testamentary 
had  been  granted  to  the  executor  therein  named,  the  Register  removed 
the  executor  and  appointed  an  administrator,  pendente  lile,  on  the  estate 
of  the  deceased,  who,  during  the  progress  of  the  litigation,  filed  his 
petition  under  the  provision  of  the  statute,  Revised  Code,  298,  before 
the  Chancellor,  and  obtained  an  order  on  the  executor,  so  removed,  to 
deliver  to  him  all  the  unadministered  effects  belonging  to  the  deceased; 
on  which  the  executor  proceeded  to  file  his  account  before  the  Register, 
which  exhibited  a  balance  in  money  of  $390  against  him,  and  which 
he  thereupon  paid  over  to  the  administrator  pendente  lite,  and  also 
delivered  to  him  all  the  unadministered  effects  belonging  to  the  de- 
ceased. The  will  was  afterwards  set  aside,  and  the  letters  testamentary 
were  revoked  ;  and  another  will  of  the  testator  having  afterwards  been 
allowed  and  admitted  to  probate,  and  letters  testamentary  granted  to 
another  as  the  executor  thereof,  he  tiled  exceptions  to  the  account  of  the 

37 


570     COUKT  OF  ERRORS  AND  APPEALS. 

preceding  and  removed  executor,  and  succeeded  in  surcharging  it  to  the 
amount,  including  the  balance,  as  ascertained  by  it,  of  $1280.48;  upon 
which  he  instituted  an  action  on  the  official  obligation  of  the  removed 
executor  to  recover  the  difference  between  the  two  sums,  as  unadminis- 
tered  money  in  the  hands  of  the  removed  executor,  payable  under  the 
condition  of  his  bond  to  the  succeeding  executor.  Held,  that  he  was 
entitled  to  recover  it,  notwithstanding  the  remedy  resorted  to  before 
the  Chancellor  by  the  administrator  pendente  lite,  the  passage  of  the 
account  and  the  payment  of  the  balance  appearing  thereon  against  the 
removed  executor  by  him,  and  his  delivery  of  all  the  unadministered 
effects  belonging  to  the  deceased  during  the  litigation  to  such  adminis- 
trator;  and  that  the  remedy  provided  in  chancery  did  not  preclude  or 
supersede  the  remedy  by  action  on  the  bond  to  recover  the  same,  a3 
unadministered  money  in  the  hands  of  the  removed  executor.  Also, 
that  the  action  on  the  bond  may  be  maintained  for  such  purpose  by  a 
remote  as  well  as  by  an  immediate  successor  in  the  office,  on  the 
removal  of  the  preceding  executor  or  administrator,  where  there  has 
been  an  intervening  administration  on  the  estate. 
A  will  made  by  a  citizen  of  the  State,  in  the  State,  contained  the  follow- 
ing provision  :  "  If  at  any  time  my  executor  and  trustee  herein  named 
shall  find  it  necessary  to  relinquish  this  executorship  and  trust,  and  the 
management  of  the  estate  herein  intrusted  to  him,  it  is  then  my  desire 
that  the  Orphans'  Court  of  the  City  and  County  of  Philadelphia  shall 
name  a  suitable  person  as  an  executor  and  trustee  in  his  place  ;  and  I 
do  hereby  appoint  the  person  so  named  to  be  in  that  event  my  executor 
and  trustee."  The  executor  and  trustee  named  in  the  will  renounced 
and  refused  the  office;  upon  which  the  Orphans'  Court  for  the  City  and 
County  of  Philadelphia  named  another  citizen  of  Philadelphia  as  a 
suitable  person  as  an  executor  and  trustee  in  his  place,  to  whom  letters 
testamentary  were  afterwards  granted  as  the  executor  of  the  will,  by 
the  Register  for  New  Castle  County.  Held,  that  the  grant  of  letters 
testamentary,  thus  made  to  him  as  executor  of  the  will,  was  valid  and 
legal,  and  that  it  was  not  necessary  and  proper  that,  instead  of  letters 
testamentary,  letters  of  administration  cum  testamento  annexo  should 
have  been  issued  to  him  by  the  Register. 

This  was  an  action  of  debt  in  the  Superior  Court  for 
New  Castle  County,  on  a  testamentary  bond,  in  tbe  name 
of  the  State,  for  the  use  of  Peter  A.  Browne,  executor  and 
trustee  under  the  will  of  Samuel  B.  Davis,  deceased,  against 
William  II.  Rogers,  and  came  up  on  a  ease  stated,  and 
questions  of  law  reserved  for  a  hearing,  before  all  the 
.Judges  in  the  Court  of  Errors  and  Appeals.  Heard  before 
Harrington,  Chancellor,  Gilpin,  Ch.  J.,  Milliyan,  Woollen,  and 
Houston,  Justices. 


STATE  use  of  DAVIS'  EXR.  v.  ROGERS.       571 

The  following  was  the  statement  of  facts  agreed  on  and 
submitted  by  the  counsel  to  the  Court.  Samuel  B.  Davis, 
a  citizen  of  the  State  of  Delaware,  and  domiciled  in  New 
Castle  County,  died  on  the  5th  day  of  September,  1854, 
and  on  the  8th  day  of  September  thereafter,  a  paper  writ- 
ing, purporting  to  be  his  last  will  and  testament,  was  duly 
admitted  to  probate  by  the  register  of  wills  in  and  for 
said  county,  and  letters  testamentary  were  in  due  form 
granted  to  William  H.  Rogers,  who  with  James  Rogers  as 
his  surety,  entered  into  the  said  testamentary  bond  to  the 
State  in  due  form  according  to  law.  Afterwards,  certain 
proceedings  in  review  were  instituted  before  the  said  re- 
gister, in  the  course  of  which  the  letters  testamentary,  so 
granted  to  the  said  William  H.  Rogers,  were  revoked,  to 
wit,  on  the  14th  day  of  July,  1855,  and  he  was  removed 
from  the  said*  office  of  executor,  and  a  certain  George  W. 
Sparks  was  appointed  administrator  pendente  lite;  and  on 
the  14th  day  of  December,  1855,  it  was  decreed  by  the  said 
register  that  the  said  paper  writing  was  not  the  last  will 
and  testament  of  the  said  Samuel  B.  Davis,  and  the  same 
was  rejected,  and  the  probate  thereof  vacated;  and  on  the 
21st  day  of  December  ensuing,  a  certain  other  paper  writ- 
ing was  propounded  to  the  said  register,  and  proven  and 
allowed  as  the  last  will  and  testament  of  the  said  Samuel 
B.  Davis,  deceased ;  by  which  said  will,  bearing  date  the 
4th  day  of  June,  1850,  Henry  D.  Gilpin,  Esq.,  was  ap- 
pointed executor  and  trustee,  which  said  Henry  D.  Gilpin 
having  renounced  the  said  executorship,  on  the  10th  day 
of  December,  1855,  the  said  Peter  A.  Browne,  of  the  city 
of  Philadelphia,  in  the  State  of  Pennsylvania,  was  by  the 
Orphans'  Court,  in  Philadelphia  County,  in  the  State  afore- 
said, named  and  appointed  executor  and  trustee,  under  and 
by  virtue  of  a  clause  or  provision  of  said  will,  as  follows: 
"  If  at  any  time  my  executor  and  trustee,  hereinbefore 
named,  shall  find  it  necessary  to  relinquish  this  executor- 
ship and  trust,  and  the  management  of  the  estate  herein 
intrusted  to  him,  it  is  then  my  desire  that  the  Orphans' 
Court  tor  the  City  and  County  of  Philadelphia  should  name 


572  COURT  OF  ERRORS  AND  APPEALS. 

a  suitable  person  as  an  executor  and  trustee  in  his  place; 
and  I  do  hereby  appoint  the  person  so  named  to  be  in 
that  event  my  executor  and  trustee."  Whereupon  letters 
testamentary  were,  on  the  24th  day  of  December,  1855, 
granted,  by  the  said  register  for  New  Castle  County,  to 
the  said  Peter  A.  Browne.  On  the  17th  day  of  December, 
1855,  the  said  William  II.  Rogers,  named  in  the  said  in- 
strument of  writing  first  hereinbefore  mentioned,  as  exe- 
cutor and  devisee  in  trust,  prayed  an  appeal  from  the 
decree  of  the  register,  setting  aside  the  said  will  and  the 
order  directing  the  costs  of  the  several  issues  as  well  as 
the  costs  of  appeal  to  be  paid  by  him,  and  also  from  the 
previous  decree  revoking  the  grant  of  letters  testamentary 
to  him  as  aforesaid ;  and  thereupon  the  said  register  made 
the  following  order :  "  December  21st,  1855.  The  said 
application  of  the  said  William  II.  Rogers,  Esq.,  praying 
an  appeal,  having  been  considered  by  the  register,  the 
appeal,  so  far  as  relates  to  the  costs  directed  to  be  paid  by 
him,  is  granted;  but  the  appeal,  so  far  as  relates  to  the 
decree  of  the  register  setting  aside  the  said  will  and  the 
order  of  the  register  revoking  the  said  letters  testamen- 
tary, is  not  granted."  Which  said  appeal  the  said  William 
II.  Rogers  caused  to  be  docketed  in  the  Superior  Court  for 
the  said  County  of  New  Castle,  and  the  same  was  there 
pending  and  undetermined  until  the  10th  day  of  Decem- 
ber, 1857,  when  the  same  was  dismissed.  And  after  the 
removal  of  the  said  William  II.  Rogers,  as  executor  as 
aforesaid,  the  said  George  W.  Sparks,  administrator  pe?i- 
dentc  lite,  preferred  his  petition  to  the  Chancellor  of  the 
State  of  Delaware,  for  an  order  upon  him  to  deliver  to  the 
said  George  W.  Sparks,  administrator  as  aforesaid,  the 
unadministered  effects  of  the  said  Samuel  B.  Davis,  de- 
ceased;  and  thereupon,  to  wit,  on  the  1st  day  of  August, 
1855,  it  was  ordered  by  the  Chancellor  that  the  same 
should  be  done;  whereupon  the  said  William  II.  Rogers 
filed  his  accounts  before  the  register  of  wills  tor  said 
county,  and  paid  over  to  the  said  George  W.  Sparks,  ad- 
ministrator as  aforesaid,  the  balance  found  to  be  due,  and 


STATE  use  of  DAVIS'  EXR.  v.  ROGERS.       573 

delivered  to  him  without  delay  all  the  unadministered 
goods  and  chattels,  rights  and  credits,  money,  securities, 
books  and  papers  belonging  to  the  estate  of  the  said  de- 
ceased. But  afterwards,  to  wit,  on  the  10th  of  December, 
1857,  exceptions  were  filed  before  the  said  register  by  the 
said  Peter  A.  Browne,  as  executor  of  the  said  Samuel  B. 
Davis,  to  the  said  accounts,  and  the  same  were  heard  be- 
fore the  Orphans'  Court  for  said  county;  and  by  the  decree 
and  order  of  the  said  Court,  the  said  William  II.  Rogers 
was  surcharged  with  the  sum  of  five  hundred  dollars,  which 
the  said  register  had  allowed  him  to  retain  to  defray  the 
expense  of  the  said  several  issues;  and  with  the  farther 
sum  of  three  hundred  and  ninety  dollars,  parcel  of  the 
commissions  allowed  to  the  said  accountant;  and  the 
account,  as  thus  surcharged  and  amended,  exhibited  a 
balance  against  the  accountant  of  twelve  hundred  and 
eighty  dollars  and  forty-eight  cents,  instead  of  a  balance 
of  three  hundred  and  ninety  dollars,  as  originally  found 
by  the  register.  Interest  was  also  awarded  upon  the  said 
respective  amounts  surcharged,  from  the  9th  of  August, 
1855.  And  the  present  suit  was  instituted  to  recover  the 
said  balance,  less  the  original  balance  ascertained  by  the 
register,  and  which  was  paid  to  the  said  administrator 
pendente  lite;  judgment  to  be  entered  in  the  said  Superior 
Court  for  the  sum  of  eight  hundred  and  ninety  dollars  and 
forty-eight  cents,  with  interest,  if  properly  chargeable  (the 
said  sum  of  five  hundred  dollars  aforesaid  having  been  held 
in  bank  to  await  the  event  of  litigation),  provided  the  Court 
in  bank  in  the  Court  of  Errors  and  Appeals  shall  be  of  the 
opinion,  upon  the  matters  stated,  that  the  plaintiff  is  enti- 
tled to  recover. 

T.  F.  Bayard,  for  the  plaintiff:  The  testator  in  this  case, 
by  his  last  will  and  testament,  appointed  Henry  I).  Gilpin 
his  executor  and  trustee,  who  renounced,  and  letters  of  ad- 
ministration, cum  testamentu  anncjco,  were  thereupon  granted 
by  the  Register  of  New  Castle  County  to,  Peter  A.  Browne 
on  his  estate,  and  the  question   to   be  considered  is,  what 


574  COUKT  OP  EERORS  AND  APPEALS. 

authority  does  this  appointment  confer  upon  him  under  the 
laws  of  this  State  ?  The  act  or  sentence  of  the  register  of 
wills,  touching  the  grant  or  revocation  of  letters  testa- 
mentary is,  under  the  laws  of  this  State,  conclusive  of  the 
right  of  the  party  therein  named  to  administer,  and  can- 
not be  called  in  question,  except  on  appeal  therefrom  to 
the  Superior  Court,  whose  decision  is  final  in  regard  to 
the  matter.  Rev.  Code,  sec.  15,  p.  500,'  sec.  46,  p.  308; 
State  Constitution,  Art.  6,  sec.  22.  When  an  executor  or 
administrator  is  removed  from  his  office,  the  succeeding 
executor  or  administrator  is  entitled  to  receive  all  moneys 
and  other  assets  belonging  to  the  estate  remaining  in  the 
hands  of  the  removed  executor  or  administrator  with 
which  he  is  chargeable  at  the  time  of  his  removal.  Bur- 
ton's Administrator  v.  Tunnell  et  al.,  5  Harr.  190.  It  is  true 
that  pending  the  litigation  of  the  will,  which  was  set  aside 
on  the  14th  of  July,  1855,  Mr.  Rogers,  the  executor  under 
that  will,  was  removed,  and  Mr.  Sparks  was  appointed 
administrator  pendente  lite,  and  on  the  first  of  August  fol- 
lowing, the  Chancellor  made  an  order  that  the  unadminis- 
tered  goods  and  chattels,  rights  and  credits,  money,  secu- 
rities, books  and  papers,  belonging  to  the  estate  of  the 
testator,  should  be  delivered  to  him ;  but  there  is  nothing 
in  this  fact  or  circumstance  in  the  case  to  preclude  the 
right  of  Mr.  Browne,  who  was  afterwards  duly  appointed 
executor  of  the  present  will,  to  maintain  the  present 
action  against  the  removed  executor,  as  the  appointment 
of  Mr.  Sparks  was  only  temporary  and  during  the  con- 
tinuance of  the  litigation  merely ;  and  by  the  account 
filed  by  Mr.  Rogers  before  the  register  as  executor,  there 
was  a  balance  in  his  hands  due  the  estate  of  $390,  which 
he  paid  over  to  Mr.  Sparks  as  such  administrator.  But 
afterwards,  on  the  expiration  of  his  special  and  temporary 
appointment  as  administrator  pendente  lite,  and  after  the  ap- 
pointment of  Mr.  Browne  as  executor  of  the  present  will, 
the  latter  filed  exceptions  to  that  account,  and  on  a  hear- 
ing in  the  Orphans'  Court,  it  was  surcharged  to  the  amount 
of  $1290,  including  the   balance  appearing  thereon,  and 


STATE  use  of  DAVIS*  EXR.  v.  ROGERS.       575 

which  had  already  been  paid  by  the  defendant  to  Mr. 
Sparks.  The  sum  therefore  for  which  this  action  has  been 
brought  is  $890.48,  with  interest  from  the  9th  day  of  Au- 
gust, 1855 ;  and  I  apprehend  there  can  be  no  question  as 
to  the  right  of  the  plaintiff,  under  the  facts  stated,  to  re- 
cover that  amount  in  this  action. 

Wm.  H.  Rogers,  for  himself,  the  defendant :  There  is  a 
wide  distinction  between  this  case  and  the  case  of  Burton's 
Admr.  v.  Tunned  et  al.,  cited  on  the  other  side.  As  to  that 
case,  I  have  had  strong  doubts  as  to  its  correctness,  and  I 
at  one  time  thought  of  asking  the  Court  to  review  its  deci- 
sion. But  assuming  it  to  be  a  sound  decision,  I  say  it  is 
entirely  different  from  the  case  now  before  the  Court. 

It  is  assumed,  however,  on  the  other  side,  that  the  deci- 
sion of  the  register  in  this  case  is  final  and  conclusive, 
and  is  not  to  be  called  in  question  except  before  him,  or 
on  appeal.  But  if  the  register  has  transcended  his  juris- 
diction, such  is  not  the  case;  because  the  statute  implies, 
and  it  must  be  so  understood,  that  in  a  court  of  limited 
and  special  jurisdiction  like  this,  that  his  decision  shall 
only  be  conclusive  in  matters  within  his  jurisdiction. 
Now,  I  think  that  the  only  remedy  for  a  surviving,  or  suc- 
ceeding administrator,  on  the  death  or  removal  of  a  co- 
administrator, or  a  preceding  administrator,  is  by  petition 
to  the  Chancellor,  under  the  provision  of  the  statute,  Rev. 
Code,  p.  298,  to  recover  the  unadministered  goods,  &c,  re- 
maining in  his  hands,  who  has  authority,  by  virtue  of  that 
provision,  to  order  and  enforce  the  delivery  of  them  ;  and 
this  I  maintain,  notwithstanding  the  latter  part  of  the  form 
of  the  bond  prescribed  in  the  Code,  p.  299. 

But  supposing  the  right  of  action  to  exist,  it  applies 
only  on  behalf  of  the  immediate,  and  not  of  a  remote  suc- 
cessor. In  this  case  there  was  an  intervening  adminis- 
trator, and  he  alone  could  maintain  the  action.  And  I 
contend  that  in  no  case  can  a  succeeding  administrator 
maintain  an  action  against  a  preceding  administrator  for 
administered  goods;  because  the  former  cannot  proceed 


576     COUET  OF  EKROKS  AND  APPEALS. 

against  the  latter  as  for  a  devistavit,  for  such  is  the  nature 
of  this  proceeding  at  common  law.      Wernick  v.  McMurdo, 

5  Band.  Rep.  51 ;   Thomas  v.  Hardwick,  1  Kelly's  Rep.  78 ; 

6  C.  10  Georg.  Rep.  266 ;  Nixon's  Admr.  v.  Harrison,  4 
Florida  Rep.  56;  Alsop  v.  Mathers,  8  Covm.  Rep.  584; 
Chamberlain's  Admr.  v.  Baker,  2  Porter's  Rep.  550 ;  Hay- 
throp  v.  Hook's  Admr.  1  6r«W  ^  t7bAws,  271 ;  Sibley  v.  Wil- 
liams, 3  Gill  $  Johns,  52 ;  Smith  v.  Ckrren,  1  Richardson's 
Rep.  123;  Young  v.  Kimball,  8  Black/.  167.  A  removed 
executor  and  the  representative  of  a  deceased  executor 
stand  in  precisely  the  same  condition,  and  are  subject  to 
the  same  liability  and  the  same  duty ;  and  this  duty  and 
liability  and  the  scope  of  the  successor's  authority  extend 
only  to  unadministered  goods.  A  suit  upon  the  official 
bond  is  necessarily  founded  upon  the  idea  of  a  devislavit  ; 
but  any  conversion  of  the  effects  of  a  testator,  whether 
rightful  or  wrongful,  is  an  administration  of  them,  as  to  a 
succeeding  executor  or  administrator;  and  an  account 
settled  before  the  register  is  full  and  conclusive  evidence, 
not  only  of  an  administration,  but  of  a  full  and  proper  ad- 
ministration, as  far  as  relates  to  the  successor,  and  he  can- 
not in  any  manner  or  proceeding  question  its  validity. 
There  is  no  privity  between  a  removed  executor  and  a 
succeeding  administrator,  especially  when  there  has  oc- 
curred an  intervening  administration ;  and  the  remedy  by 
action  on  the  bond  does  not  accrue  to  a  remote,  but  only 
to  an  immediate  successor ;  and  besides,  that  remedy  can 
only  be  for  goods  remaining  unadministered  in  his  hands, 
and  for  no  others.  At  all  events,  admitting  the  summary 
remedy  by  application  to  the  Chancellor  to  be  cumulative 
merely,  yet  if  the  successor  elects  to  take  such  remedy,  he 
and  his  successors  are  bound  by  such  election,  and  cannot 
afterwards  resort  to  an  action  on  the  official  bond ;  and 
the  delivery  to  the  administrator  pendente  lite,  whose  right 
to  receive  was  thus  judicially  settled  by  the  order  of  the 
Chancellor,  of  all  of  the  unadministered  goods  and  chattels, 
&c,  and  the  payment  of  the  balance  judicially  ascertained, 


STATE  use  of  DAVIS'  EXR.  v.  ROGERS.       577 

was  a  full  and  complete  performance  of  the  condition  of 
the  bond. 

But,  supposing  that  I  am  wrong  on  all  these  points,  I 
assume  in  the  next  place  that  the  plaintiff  in  this  action  is 
not  the  rightful  and  lawful  executor,  or  administrators,  t.  a. 
of  the  testator.  Because  it  was  not  competent  for  the. tes- 
tator, who  resided  in  this  State  at  the  date  of  his  will  and 
at  the  time  of  his  death,  to  authorize  a  foreign  tribunal  to 
appoint  or  nominate  an  executor  of  his  will  in  this  State ; 
and  even  if  he  had  that  power,  it  was  not  done  in  accord- 
ance with  the  terms,  or  in  the  exigency  contemplated  and 
provided  for  in  the  will,  which  must  be  pursued  strictly  in 
this  respect,  and  it  is  therefore  invalid.  2  Sugd.  on  Poirers, 
504 ;  Sharp  v.  Sharp,  2  Barn.  <f  Aid.  406 ;  Townsend  v.  Wil- 
son, 1  -Barn,  cf-  Aid.  608  ;  McAdam  v.  Lagan,  3  Bro.  Ch.  Ca. 
310;  Boger  v.  Waller,  9  Dana,  482.  There  was  a  renuncia- 
tion of  the  office  by  Mr.  Gilpin,  not  a  "  relinquishment"  of 
it,  and  a  refusal  to  accept,  not  a  cessation  from  its  "  man- 
agenien(.,'>  The  appointment  here  is  in  terms  ancillary  to 
the  Pennsylvania  appointment,  and  rests  upon  it.  The 
courts  of  Pennsylvania  can  under  no  circumstances  assume 
the  power  to  appoint  an  executor  to  a  party  domiciled  at 
the  time  of  his  death  in  Delaware.  The  jurisdiction  is 
strictly  local,  and  pertains  exclusively  and  originally  to  the 
register  of  the  county  of  his  domicile.  Besides,  our  act  pro- 
vides that  if  an  executor  renounces,  refuses,  or  neglects  to 
take  upon  him  the  office,  an  administrator  cum  testanwnto 
annexo  shall  be  appointed;  but  in  this  case,  after  the  re- 
nunciation of  Mr.  Gilpin,  letters  testamentary  were  granted 
to  Mr.  Browne,  by  the  register,  which  is  contrary  to  ami 
unauthorized  by  the  act. 

T.  F.  Bagard,  in  reply:  I  shall  not  follow  the  counsel 
on  the  other  side  into  the  question  as  t<>  the  due  execution 
of  powers,  hut  I  shall  rely  on  the  decisions  of  the  highest 
court  in  this  State,  and  the  questions  which  properly  arise 
on  the  case  stated. 

"What    is   to    become   of  proceedings   in    the   Register's 


578  COURT  OF  ERRORS  AND  APPEALS. 

Court,  if  they  can  be  collaterally  impeached  in  every  suit 
which  an  executor  may  be  obliged  to  institute  against  the 
debtors  of  the  estate  which  he  represents  ?  Who,  under 
the  laws  of  this  State,  has  power  to  grant  or  revoke  letters 
testamentary,  or  of  administration  ?  To  the  register  of 
wills,  in  the  several  counties,  the  sole  power  is  granted 
for  these  purposes,  and  by  the  statute  {Rev.  Code.,  300,  sec. 
15),  an  appeal  is  given  to  the  Superior  Court  from  his  de- 
cision in  such  cases,  and  I  utterly  deny  that  it  is  competent 
for  a  debtor  of  the  estate,  in  a  suit  against  him  by  an  ex- 
ecutor, to  call  in  question,  in  this  collateral  way,  the  cor- 
rectness or  validity  of  his  decision" in  such  a  matter;  for  it 
is  final  and  conclusive,  unless  appealed  from  and  reversed 
in  the  mode  prescribed  by  the  statute. 

The  next  question  is,  whether  a  removed  executor  can 
be  sued  on  his  official  bond  by  any  other  than  his  imme- 
diate successor,  there  having  been  in  this  case  the  interpo- 
sition of  an  administrator  pendente  lite,  after  the  removal  of 
the  defendant  and  before  the  appointment  of  the  present 
executor,  for  whose  use  the  suit  is  brought.  The  words 
embraced  in  that  portion  of  the  condition  of  the  bond  on 
which  this  question  depends,  do  not  even  contain  the  word 
"successor,"  much  less,  immediate  or  remote  successor; 
for  its  language  is,  "  shall,  without  delay,  deliver  to  the 
person  or  persons  entitled  to  receive  the  same,  all  the  unadminis- 
tered  goods"  &c.  Now,  who  but  the  present  executor  was 
the  person  entitled  to  receive  the  balance  demanded  in  this 
case,  and  which  was  not  judicially  ascertained  and  deter- 
mined until  after  his  appointment  to  the  office,  and  which 
was  done  upon  exceptions  tiled  by  him  to  the  account 
which  was  passed  and  filed  before  the  register  during  the 
temporary  administration  of  Mr.  Sparks?  As  to  the  ques- 
tion raised  in  regard  to  administered  and  unadministered 
goods,  and  the  right  of  a  succeeding  administrator  to  main- 
tain an  action  on  his  bond  against  a  removed  exeeutor  or 
administrator,  it  is  settled  in  the  case  of  Burto?i's  Adminis- 
trator v.  Tunnell  ct  al.,  before  cited  by  me.  But  the  amount 
claimed  in  this  case  was  not  administered  goods,  or  money, 


STATE  use  of  DAVIS'  EXR.  v.  ROGERS.       579 

because  the  estate  of  the  testator  is  not  yet  settled ;  there 
are  still  outstanding  debts  against  it  to  be  paid  and  satis- 
fied, and  it  is  therefore  not  a  residue  remaining  for  distri- 
bution in  the  hands  of  the  removed  executor;  although 
the  Court  refused  to  recognize  even  this  distinction  in 
favor  of  the  sureties  of  the  removed  administrator  in  that 
case. 

By  the  Court  it  was  held  that  the  present  executor,  for 
whose  use  the  action  was  brought,  had  been  duly  appointed 
executor  under  the  provisions  of  the  will  of  the  testator, 
and  as  such  was  entitled  to  maintain  this  action  on  the 
official  obligation  of  the  defendant,  as  the  removed  execu- 
tor, notwithstanding  there  had  been  an  intervening  admin- 
istration pendente  lite,  subsequent  to  the  removal  of  the 
defendant  from  the  executorship  and  prior  to  the  appoint- 
ment of  the  plaintiff  to  it;  and  the  following  decision  was 
directed  to  be  certified  in  the  case  to  the  court  below : 

And  now,  to  wit,  June  18,  1858,  this  case  having  been 
duly  heard  and  argued  by  counsel  on  both  sides,  at  the 
present  term  of  this  Court,  before  all  the  judges  thereof, 
upon  all  the  points  of  law  reserved  and  set  forth  in  the 
above  case  stated,  and  the  same  having  been  duly  con- 
sidered by  the  said  Court,  it  is  ordered,  adjudged,  and  de- 
creed, that  the  plaintiff  is  entitled  to  recover  the  sum  of 
eight  hundred  and  ninety  dollars  and  forty-eight  cents, 
with  interest  thereon  from  the  9th  day  of  August,  1855,  and 
that  judgment  be  entered  in  the  court  below  in  favor  of  the 
plaintiff  for  that  sum,  together  with  the  costs  accrued  in 
this  Court  as  well  as  in  the  court  below,  and  that  the  fore- 
going decision  be  certified  to  the  court  below,  and  the 
record  remanded. 


580  COURT  OF  ERRORS  AND  APPEALS. 


William  Tharp,  Henry  B.  Fiddeman  and  Daniel  Curry, 
Appellants,  v.  Charles  T.  Fleming,  Trustee  under  the 
will  of  Benjamin  Potter,  deceased,  Appellee. 

The  Legislature  has  no  power  to  authorize  or  direct  the  sale  and  conver- 
sion of  real  estate  into  personalty,  devised  by  a  testator  in  perpetuity 
and  trust  to  a  charity  ;  although  the  act  is  conceived  in  a  friendly  spirit 
towards  the  object  of  the  trust,  and  with  a  design  to  render  the  fund 
more  productive  and  effectual  for  the  purposes  of  the  charity  contem- 
plated by  the  testator. 

Appeal  from  the  Court  of  Chancery,  Kent  County. 
Before  Harrington,  Chancellor  (the  case  below  having  been 
before  his  predecessor,  Johns,  Chancellor),  Gilpin,  Ch.  J., 
Millie/an,   Woollen,  and  Houston,  Justices. 

The  appeal  was  from  an  interlocutory  decree  or  order 
made  by  the  late  Chancellor,  Johns,  upon  the  petition  of 
Charles  T.  Fleming,  trustee  under  the  will  of  Benjamin 
Potter,  deceased,  praying  a  writ  of  injunction  to  enjoin 
and  restrain  William  Tharp,  Henry  B.  Fiddeman,  and 
Daniel  Curry,  trustees,  appointed  and  authorized  by  an  act 
of  the  Legislature,  to  sell  the  real  estate  devised  by  the 
said  Benjamin  Potter  to  charity,  from  selling  the  same,  in 
accordance  with  the  prayer  of  the  said  petition. 

Benjamin  Potter,  the  testator,  had  by  his  last  will  and 
testament,  devised  all  the  balance  of  his  estate,  real,  per- 
sonal, and  mixed,  to  I 'otter  Grimtb,  George  S.  Adkins,  and 
Levin  J  I.  Adams,  with  authority  to  sell  the  same  at  such 
time  or  times  as  they  might  deem  most  proper,  and  to  pay 
over  the  proceeds  thereof  to  the  same  persons  as  the  exe- 
cutors of  his  will  ;  and  particularly  enjoining  it  on  them, 
or  the  survivor  or  survivors  of  them,  or  agents  appointed 
by  them,  or  by  the  Chancellor  of  the  State  of  Delaware, 
to  invesl  the  net  proceeds  as  it  should  become  due,  in 
such  stocks  as  they  or  a  majority  of  them  might  deem 
most  proper;  and  to  reinvest  the  dividends  which  might 
arise  therefrom,  for  the  term  of  five  years  from  the  date  of 
the  purchase  of  the  stock;  and  that  all  the  net   proceeds 


THARP  v.  FLEMING.  581 

or  dividends  afterwards  arising  therefrom  should  be  dis- 
tributed by  them  in  the  following  manner :  one-third 
thereof  to  the  trustees  of  the  Methodist  Episcopal  Church 
in  the  town  of  Milford,  Delaware,  for  the  sole  use  of  said 
church,  one  other  third  part  thereof,  to  and  for  the  sup- 
port of  the  aged  and  infirm  portion  of  the  mechanics  re- 
siding, in  the  town  of  Milford,  and  to  assist  such  young 
mechanics  in  setting  up  or  commencing  their  respective 
trades,  who  should  not  be  able  to  do  so  themselves  of  their 
own  means,  &c,  and  the  remaining  third  part  thereof,  to  be 
distributed  among  the  poor  white  citizens  of  the  town  of 
Milford  and  Milford  Hundred ;  the  distribution  to  be  made 
by  agents  to  be  appointed  by  the  Orphans'  Court,  or  Levy 
Court  of  Kent  County,  as  might  be  deemed  most  proper ; 
no  part  of  the  bequest,  however,  to  be  applied  to  the  use 
or  benefit  of  any  person  or  persons  residing  within  the 
walls  of  a  poor-house,  but  to  be  distributed  among  such 
only  of  the  poor  who  by  timely  assistance  might  be  kept 
from  being  carried  to  the  poor-house  and  becoming  sub- 
jects thereof.  But  by  a  codicil  afterwards  executed  and 
added  to  his  will,  he  made  the  following  alteration  in  the 
foregoing  devise,  by  which  he  devised  and  directed  that 
the  real  estate  embraced  in  the  devise,  instead  of  being 
sold  as  therein  directed,  should  be  rented  out  by  his  exe- 
cutors and  the  proceeds  arising  from  such  rents  should  be 
applied  by  his  executors  to  the  same  purposes  and  for  the 
same  uses  as  were  mentioned  in  said  devise.  It  being  his 
intention  and  meaning  thereby  to  alter  and  amend  said 
devise  only  so  far  as  to  enjoin  it  upon  his  executors  afore- 
said, the  renting,  instead  and  in  the  place  of  the  sale  of  his 
real  estate.  And  by  another  codicil  subsequently  executed 
to  his  will,  he  still  further  modified  the  devise  as  it  had 
thus  been  altered  by  the  former  codicil,  by  cancelling,  an- 
nulling and  making  void  every  part  of  his  will  and  codicil 
thereto,  that  gave  and  devised  any  portion  of  his  estate  to 
the  trustees  of  the  Methodist  Kpiscopal  Church  in  the 
town  of  Milford,  and  also  every  part  thereof  that  gave  and 
devised  any  part  or  portion  of  his  estate  for  the  support, 


582  COURT  OF  ERRORS  AND  APPEALS. 

use  and  benefit  of  the  mechanics  residing  in  the  town  of 
Milford,  and  instead  of  said  distribution  to  the  church 
aforesaid,  and  among  the  mechanics  aforesaid,  he  gave  and 
bequeathed  that  portion  of  his  estate  that  was  devised  for 
those  two  purposes,  and  also  that  portion  of  his  estate  that 
was  devised  to  the  poor  white  citizens  of  the  town  of  Mil- 
ford  and  Milford  Hundred,  to  and  for  the  support,  mainte- 
nance and  education  of  the  poor  white  citizens  of  Kent 
County  generally,  the  apportionment  and  distribution  to 
be  made  in  the  same  manner  and  under  the  same  restric- 
tions and  regulations  as  were  mentioned  and  written  in 
the  aforesaid  devise  in  his  said  will,  &c. 

After  the  death  of  the  testator  and  the  probate  of  the 
will  and  codicils,  the  executors  above  named  declined  to 
take  upon  themselves  the  trusts  of  the  will,  and  Charles  T. 
Fleming  was  appointed  by  the  Court  of  Chancery,  trustee 
in  their  stead,  of  the  real  estate  devised  to  charity  as  set 
forth  in  the  will  and  codicils,  consisting  of  several  large 
tracts  of  land  situate  partly  in  Sussex,  but  mostly  in  Kent 
County. 

The  act  of  the  Legislature  referred  to  in  the  petition  of 
the  trustee  for  the  writ  of  injunction,  was  entitled  "An 
act  to  authorize  the  sale  of  the  real  estate  devised  by  Ben- 
jamin J 'otter,  late  of  Kent  County,  deceased,  to  charity," 
Del.  Laws,  vol.  10,  p.  523,  which,  after  reciting  in  the  pre- 
amble that  the  lands  so  devised  to  be  rented  out,  and  the 
rents  and  proceeds  to  be  applied  as  provided  for  in  tbe 
will  and  codicils,  consisted  of  several  tracts,  for  the  most 
part  covered  with  wood,  and  all  extremely  poor,  yielding 
a  scanty  revenue,  a  great  portion  of  which,  owing  to  the 
dilapidated  condition  of  the  buildings  and  improvements, 
and  the  class  of  tenants  occupying  them,  was  necessarily 
consumed  in  keeping  up  repairs,  preserving  the  land  itself 
from  waste  and  destruction,  and  in  the  collection  of  the 
rents,  and  that  the  object  of  the  testator's  charitable  dona- 
tion would  be  best  effected  by  a  sale  of  the  same,  the  wood 
and  timber  on  which  were  very  valuable,  and  the  invest- 
ment of  the  proceeds  under  the  superintendence  of  the 


THARP  v.  FLEMING.  583 

Court  of  Chancery,  in  such  manner  as  would  yield  an  in- 
terest of  six  per  centum  per  annum,  proceeded  to  appoint 
Charles  T.  Fleming,  with  the  appellants,  trustees,  and  to 
authorize  them  to  sell  at  public  sale  all  the  lands  so  devised 
as  aforesaid,  in  such  parcels  or  divisions  as  would  secure 
the  highest  price  therefor,  and  to  make  return  of  their 
proceedings  in  the  premises  to  the  Court  of  Chancery  for 
confirmation,  and  to  provide  for  the  payment  of  the  money 
arising  from  the  sales  into  Court  and  its  investment,  and 
for  the  application  of  the  income  accruing  from  the  invest- 
ment, to  the  charitable  object  pointed  out  in  the  will  and 
codicils,  by  the  Chancellor,  according  to  the  practice  in 
Chancery  in  England,  &c.  But  Fleming,  the  trustee,  re- 
fused to  serve  as  a  trustee  under  the  act  of  the  Legislature, 
and  filed  his  petition  in  the  Court  of  Chancery  to  enjoin 
and  restrain  the  other  trustees,  the  appellants,  from  pro- 
ceeding under  it. 

The  causes  of  appeal  assigned  were  :  First.  That  the  ap- 
pellants, together  with  the  said  Charles  T.  Fleming,  were 
proceeding  to  sell  the  said  real  estate  under  and  by  virtue 
of  the  said  act  of  the  Legislature,  and  that  the  Chancellor 
erred  in  enjoining  and  restraining  them  from  making  said 
sale.  Second.  That  the  Chancellor  issued  the  said  injunc- 
tion on  the  ground  that  the  said  act  was  unconstitutional 
and  void,  whereas  the  said  act  was  good  and  valid.  Third. 
That  the  Chancellor  issued  the  said  injunction  on  the 
ground  that  the  Legislature  possessed  no  authority  to  pass 
such  an  act,  and  that  the  said  act  was  consequently  null 
and  void;  whereas  the  Legislature  had  full  authority  to 
pass  the  said  act,  and  the  same  was  obligatory  and  binding 
on  all  the  people  of  the  State.  Fourth.  That  no  citizen  of 
the  State,  or  of  the  county,  except  the  Chancellor,  objected 
to  the  said  act,  or  to  the  sale  to  be  made  under  it ;  but  the 
petition  for  the  injunction  preferred  by  the  said  Charles 
T.  Fleming,  trustee  as  aforesaid,  was  so  preferred  by  the 
order  and  direction  of  the  Chancellor,  and  that  he  erred  in 
requiring  the  said  trustee  to  initiate  the  said  proceeding 
for  injunction  by  his  own  order,  but  he  should  have  waited 


584  COURT  OP  ERRORS  AND  APPEALS. 

until  some  one  interested  in  said  lands  and  premises,  or 
the  rents  and  profits  thereof,  had  brought  the  case  before 
him,  if  any  such  could  be  found  to  do  it.  Fifth.  That  the 
Chancellor  ought  to  have  dismissed  the  said  petition,  and 
consequently  erred  in  granting  the  said  injunction. 

D.  M.  Bates,  for  the  appellants :  The  first  question  in 
this  case  which  presents  itself  is  this :  Supposing  the  Legis- 
lature to  have  transcended  its  power  and  authority  in  en- 
acting such  a  law  as  this,  was  the  Chancellor  warranted, 
at  this  stage  of  the  matter,  in  interposing  with  his  extraor- 
dinary power  of  injunction,  before  the  trustees  or  commis- 
sioners had  proceeded  to  do  anything  under  the  law?  But 
3hould  he  not  have  left  the  question  of  its  constitutional 
validity  to  come  up  on  the  return  of  their  proceedings 
under  it,  into  his  court,  when  the  whole  matter  would  have 
been  judicially  before  him,  and  this  question,  with  any 
others  which  he,  or  any  one  else  might  see  proper  to  raise, 
and  when  he  and  the  public  might  at  least  have  had  the 
satisfaction  of  discovering  whether  the  truth  of  the  pre- 
amble and  the  wisdom  of  the  act  had  been  vindicated  by 
the  result  of  the  sale,  and  whether  this  devise  and  the  noble 
charity  to  which  it  is  dedicated,  now  utterly  barren,  worth- 
less and  unprofitable  for  that  purpose,  as  it  lies,  was  not 
in  fact  of  great  intrinsic  value,  and  a  munificent  donation 
for  the  object  designed,  if  it  could  only  be  converted  into 
a  personal  and  productive  fund?  That  such  would  have 
been  the  result  no  one  who  has  the  slightest  knowledge  of 
the  lands  devised  can  for  a  moment  doubt.  They  now 
yield  scarcely  a  dollar  of  net  income  in  the  hands  of  the 
trustee,  whilst,  in  the  market,  if  put  up  and  sold,  they 
would  readily  command  from  thirty  to  forty  thousand  dol- 
lars in  their  present  state. 

The  act  contemplates  and  commands  two  prominent 
things  to  be  done.  First,  the  sale  and  conversion  of  the 
real  estate  into  money,  and  secondly,  the  investment  and 
administration  of  the  fund  afterwards  by  the  Chancellor. 
The  injunction  pertains  to  the  first  object  only;  for  the 


THARP  v.  FLEMING.  585 

second  could  only  arise  for  consideration  after  the  sale, 
and  the  money  arising  from  it  had  been  brought  into  the 
Court  of  Chancery  for  that  purpose.  As  to  the  first  of  these 
objects,  I  have  to  say,  in  the  first  place,  that  it  was  essen- 
tially necessary  for  the  purposes  of  the  trust  itself.  If  the 
Court  could  look  into  the  history  of  this  trust  as  developed 
in  the  Court  of  Chancery,  it  would  be  astonished  to  dis- 
cover that  a  fund  so  valuable  in  itself  could  have  been, 
through  the  long  lapse  of  years  since  the  death  of  Mr. 
Potter,  so  utterly  barren  and  unproductive.  And  this  fact 
alone  urgently' and  imperatively  required,  as  a  matter  of 
good  faith  and  pious  regard  for  the  design  of  the  testator, 
and  of  justice  to  the  beneficiaries  of  his  benevolence  and 
charity,  that  something  should  be  done,  if  possible,  to  re- 
medy this  long-existing  evil.  If  the  Legislature  had  con- 
stitutional power  to  act  in  the  matter,  it  was  the  sole  and 
exclusive  judge  of  the  necessity  and  propriety  of  its  action 
in  the  premises.  Under  the  devises  in  the  will  and  codicils 
there  is  no  power  conferred  on  any  one  to  sell  the  real 
estate  devised  to  the  trust,  or  on  any  body,  legislative  or 
judicial.  The  trustees  appointed  in  the  will  are  trustees 
and  holders  of  the  legal  estate,  with  a  naked  power  to  rent, 
and  had  no  power  over,  and  had  nothing  to  do  with  the 
administration  of  the  fund  itself!  They  therefore  had  no 
power  to  sell,  even  if  it  should  be  considered  that  the 
power  to  administer  the  fund  includes  the  power  to  sell 
it,  which  is  another  question.  Neither  had  the  Court  of 
Chancery  any  power  or  authority  to  direct  the  sale  of  this 
real  estate.  The  general  act  of  the  Legislature,  Dig.  of 
1829,  p.  118,  confers  no  such  power  on  the  Court  of  Chan- 
cery in  this  case.  By  the  act  of  1793,  Del.  Laws,  vol.  2, 
1055,  the  general  power  of  the  Court  of  Chancery  in  Eng- 
land,  was  conferred  upon  the  Court  of  Chancery  in  this 
State,  to  manage  and  control  the  estates  of  idiots  and  luna- 
tics ;  and  yet  the  Chancellor  in  this  State,  from  that  day 
to  this,  has  never  directed  the  real  estate  of  an  idiot  or 
lunatic  to  be  sold  and  converted  into  money.  And  if  the 
power  to  direct  the  sale  of  this  real  estate  was  not  in  the 

38 


586     COURT  OF  ERRORS  AND  APPEALS. 

Court  of  Chancery,  it  is  quite  unnecessary  to  add  that  it 
could  not  be  in  any  other  court  or  judicial  body  in  this 
State. 

I  need  not  say  that  the  fund,  as  it  now  lies,  is  a  public 
nuisance  and  a  continual  source  of  petty  plunder  and  spo- 
liation by  many  who  claim  to  be  poor  white  citizens  of 
Kent  County,  and  to  be  taking  only  what  was  devised  to 
them  by  the  testator,  and  of  perpetual  vexation  and  an- 
noyance to  the  trustee  who  has  the  care  of  it.  Under  these 
circumstances  I  then  say  the  power  to  sell  and  convert  the 
fund  into  money,  so  as  to  effect  the  beneficial  objects  of 
the  devise  and  trust,  must  ex  necessitate,  reside  somewhere, 
and  that  it  vests  in  the  Legislature.  Whenever  the  bene- 
ficiaries of  the  trust  are  incapable,  from  infancy,  idiocy, 
or  otherwise,  of  consenting  to  the  sale  and  conversion 
of  real  into  personal  estate,  the  power  to  sell  it  is  in  the 
Legislature ;  and  this  has  always  been  done  from  the 
foundation  of  the  government,  without  question,  I  be- 
lieve. The  only  true  and  reliable  exposition  of  this  power 
is  to  be  found,  not  so  much  in  treatises  and  authorities, 
as  in  the  action  and  practice  of  the  government  on  the 
subject;  and  this  is  called  the  remedial,  and  not  strictly 
the  legislative  power  of  the  government.  It  is  a  power 
which  necessity  requires  to  be  exercised  for  the  benefit  and 
welfare  of  the  parties  concerned,  and  has  frequently  been 
exercised  by  the  Legislature  of  this  State.  Of  this  charac- 
ter are  the  acts  which  authorize  the  Orphans'  Court  and 
the  Court  of  Chancery  to  order  the  sale  of  real  estate  and 
its  conversion  into  money,  to  effect  partition  among  the 
parties  entitled  to  it;  and  the  principle  on  which  it  rests, 
as  I  have  before  remarked,  is  this :  it  must  reside  some- 
where and  in  some  body  possessing  higher  and  more  ample 
powers  of  discretion  than  courts  of  justice,  and  must  there- 
fore vest  in  the  Legislature.  Clark  v.  Van  Surlay,  15  Wend. 
436 ;  S.  C.  20  Wend.  365.  The  power  is  possessed  by  the 
sovereign  as  parens  patriot,  and  is  not  judicial,  but  tutelary 
and  parental  in  its  character.  The  power  must  reside 
somewhere,  and  is  in  the  Legislature  and  may  be  exercised 


THARP  v.  FLEMING.  587 

in  a  special  case  as  well  as  generally.  Estep  v.  Hutchinson, 
14  Serg.  £  Rawle,  435  ;  Rice  v.  Parkman,  16  Mass.  326 ;  Da- 
vidson v.  Johonnet,  7  Mete.  388,  392.  It  is  not  a  judicial  power; 
because  it  is  not  exercised  between  parties  in  conflicts  in- 
volving any  question  of  right,  or  redress  between  them, 
but  is  parental  and  tutorial  in  its  nature ;  the  object  of  it 
being  merely  to  convert  real  into  personal  property  for  the 
beneficial  purposes  of  all  the  persons  interested,  and  may 
be  exercised  in  a  special  case  by  way  of  a  private  act,  even 
though  there  be  at  the  same  time  a  public  act  of  a  general 
character  on  the  subject.  Watkins  v.  Holeman,  16  Peters,  51. 
And  if  this  power  exists  anywhere,  this  is  certainly  a  case 
in  which  it  is  indispensably  necessary  that  it  should  be  ex- 
ercised. 

I  am  aware  that  it  will  be  objected,  on  the  other  side, 
that  the  power  resides  in  the  Court  of  Chancery,  in  this 
State,  if  it  exists  anywhere,  and  npt  in  the  Legislature. 

I  shall  now  proceed  to  consider  the  question,  does  the 
power  to  administer  the  fund  of  a  public  charity  exist  in 
the  Court  of  Chancery  in  this  State  ?  But  let  me  first 
inquire,  what  constitutes  a  public  charity?  I  answer,  the 
uncertainty  of  the  beneficiaries  and  the  permanency  of  the 
fund,  constitute  the  two  prominent  characteristics  of  such 
a  charity.  The  power  originally  inheres  in  the  donor,  as 
a  visitorial  power;  but  formerly  it  was  more  frequently 
vested  in  trustees  appointed  by  him ;  now,  however,  it  is 
more  frequently  vested  in  a  corporation.  In  the  first,  it  is 
incident  to  the  right  of  property ;  but  when  the  superin- 
tendence is  vested  in  the  latter,  that  is  to  say,  in  trustees, 
or  a  corporation,  the  power  is  delegated  to  them;  and  when 
it  in  not  vested  in  trustees  or  a  corporation,  or  any  other 
person  or  body  appointed  by  him,  as  it  is  not  a  judicial, 
but  a  remedial  power  in  its  nature,  it  devolves  upon  the 
sovereign  authority  of  the  State,  as  the  parens  patriae  and 
general  guardian  of  the  public  interests.  2  Story  Eq.,secs. 
1191,  1155,  1160;  2  Fonb.  Eq.  209,  in  note. 

The  testator  died  in  1843,  and  from  that  time  up  to  the 
time  of  the  passage  of  this  act  in  1851,  the  fund  remained 


588  COURT  OF  ERRORS  AND  APPEALS. 

wholly  ineffectual.  Neither  the  Orphans'  Court,  the  Levy 
Court,  nor  the  Court  of  Chancery,  had  ever  undertaken  to 
administer  it  in  any  way  whatever.  The  power  being  a 
remedial  and  not  a  judicial  power,  where  there  is  no 
person  to  administer  the  charity,  the  Legislature  is  the 
only  body  to  administer  it.  Where  there  are  litigant  par- 
ties in  regard  to  it,  and  the  administration  of  the  fund  is 
thus  brought  before  the  Court,  it  is  then  a  judicial  question, 
and  a  judicial  power  to  be  exercised  by  the  Court  in  deter- 
mining such  a  question  concerning  the  administration  of 
it.  But  when  there  is  no  question  of  litigation  involved 
between  parties,  the  power  to  administer  the  charity  is  in 
the  Legislature.  In  England,  the  power  to  administer  a 
charity  does  not  inhere  in  the  Court  of  Chancery,  as  a 
judicial  power,  or  as  an  ordinary  subject  of  equity  jurisdic- 
tion, but  it  is  a  prerogative  power  of  the  Crown  as  the 
parens  patriot,  exercised  by  the  Chancellor  as  the  keeper  of 
the  king's  conscience,  and  as  his  representative  for  such 
purposes;  and  such  a  power,  it  has  been  decided,  is  not 
vested  in  the  United  States  by  the  Federal  Constitution, 
under  the  first  section  of  the  third  article,  as  a  part  of  the 
judicial  power  of  the  United  States.  Fontaine  v.  Jtavanelle, 
17  How.  369,  392.  But  admitting  the  Court  of  Chancery 
in  this  State  has  this  power,  yet  that  does  not  include  the 
power  to  convert  the  fund  from  realty  into  personalty. 
The  will  directs  that  the  real  estate  shall  not  be  sold,  but 
shall  be  rented,  and  the  rents  and  profits  are  to  be  applied 
to  the  purposes  of  the  charity,  and  the  rents  and  profits, 
and  not  the  land  itself,  are,  therefore,  the  subjects  of  the 
administration  of  the  charity.  It  will  not  do  to  say  that, 
in  some  cases,  the  trustee  or  the  Court  of  Chancery  may 
sell  the  land  itself;  for  that  cannot  be  done  when  the  land 
itself  is  not  the  subject  of  the  administration  of  the  trust 
or  charity,  but  only  the  rents  and  profits  are  so,  unless  the 
power  to  sell  the  land  is  granted  to  the  trustee,  either  in 
express  terms  or  by  necessary  implication  in  the  devise, 
which  is  not  the  case  here,  because  the  will  expressly  pro- 
vides that  the  land  shall  be  rented  and  not  sold.     Attorney- 


THAKP  v.  FLEMING.  589 

General  v.  BuUer,  4  Eng.  Ch.  Rep.  408.  The  Court  of  Chan- 
cery has  the  judicial  power  of  sale  iu  execution  of  its  own 
decrees;  but  where  there  is  no  controversy  inter  partes,  the 
Court  has  no  remedial  power  of  sale  for  the  purposes  of 
the  trust  merely.  16  Mass.  326.  And  the  Court  of  Chan- 
cery in  this  State  has  no  such  power,  and  it  has  never 
decreed  the  sale  of  the  real  estate  of  any  one  for  the  mere 
benefit  of  the  party  interested,  and  no  case  can  be  pro- 
duced in  which  it  has  been  done.  And  it  has  never  de- 
creed the  sale  of  real  estate  for  remedial  purposes  merely. 
Until  the  year  1837,  the  sole  power  of  selling  the  real 
estate  of  minors  for  their  benefit  was  exercised  by  the 
Legislature;  but  in  that  year  the  general  act  was  passed, 
conferring  the  remedial  power  upon  the  Orphans'  Court 
to  order  the  sale  of  the  real  estate  of  such  persons  for  their 
benefit;  prior  to  which  time,  neither  that  court,  nor  any 
other  court  in  this  State,  ever  pretended  to  exercise  that 
remedial  power. 

Comegys,  for  the  appellee :  The  only  question  involved  in 
this  case  is  this:  had  the  Legislature  the  power  to  pass  the 
act  to  authorize  the  sale  of  the  land  devised  to  the  purposes 
of  this  trust?  In  the  former  case  decided  in  this  Court  on 
this  will,  one  of  the  questions  presented  was,  whether  it 
was  in  the  power  of  the  testator  to  devise  these  lands  in 
perpetuity  for  the  purposes  of  this  charity?  and  after  an 
able  and  elaborate  argument,  it  was  held  and  decided  by 
the  Court  that  he  had  that  power.  Having  devised  those 
lands,  then,  to  this  purpose  in  perpetuity,  and  having,  as 
this  Court  has  decided,  the  power  so  to  devise  them,  who 
has  the  power  to  destroy  this  perpetuity  and  to  defeat  and 
annul  his  will  in  regard  to  it?  Has  the  Legislature  any 
such  power?     I  deny  it. 

This  is  not  a  public  charity,  as  has  been  contended  on 
the  other  side.  As  to  what  will  constitute  a  public  charity, 
I  will  refer  the  Court  to  2  Story's  Eq.,  sees.  1190, 1191,  1192. 
When  the  devise  is  to  a  charity  generally,  without  the  ap- 
pointment of  trustees  to  administer  it,  then   the   king,  as 


590     COURT  OF  ERRORS  AND  APPEALS. 

the  parens  patrice,  and  the  Chancellor  as  his  agent,  will  as- 
sume the  administration  of  it,  as  a  public  charity ;  but 
when  there  are  trustees  appointed  to  administer  it,  it  is 
not  a  public  charity,  for  they  alone  are  to  administer  it, 
and  the  sovereign  power  of  the  state,  as  the  parens  patrice, 
has  nothing  to  do  with  it,  and  all  the  Chancellor  can  do  is 
to  see  that  the  trustees  administer  it  faithfully,  by  virtue 
of  his  general  jurisdiction  over  the  subject-matter,  as  a 
trust  merely ;  and  this  is  what  constitutes  the  true  distinc- 
tion between  a  public  and  a  private. charity.  But  this  as- 
serted power  of  the  Legislature  must  be  referred  to  some 
principle.  Here  is  a  valid  devise  to  a  charity,  trustees 
appointed,  and  the  mode  specified  in  which  it  is  to  be  ad- 
ministered ;  and  if  the  Legislature  has  authority  to  lay  its 
hand  on  the  land  dedicated  to  this  purpose,  and  on  the 
estate  vested  under  the  will  in  the  trustees,  and  to  defeat 
and  destroy  the  will  and  to  sell  and  alienate  the  estate  to 
another,  free  and  discharged  forever  from  the  trust,  I 
should  like  to  see  a  case  produced  or  cited  to  sanction 
and  sustain  it.  When  there  is  a  person  clothed  with  the 
legal  title  and  capable  of  administering  the  charity,  the 
doctrine  of  parens  patrice  has  no  application  to  the  case ; 
for  the  sovereign  has  no  parental  authority  over  it. 

It  is  not  necessary  for  me  to  show  that  the  power  to 
order  the  sale  and  conversion  of  the  real  fund  into  per- 
sonalty, is  in  the  Court  of  Chancery.  Until  recently,  I 
was  inclined  to  the  opinion  that  this  might  be  done  by 
the  Chancellor,  but  I  am  now  well  convinced  that  this 
cannot  be  done ;  and  were  the  case  in  England,  it  could 
not  be  done,  with  all  the  theoretical  and  boasted  omnipo- 
tence of  Parliament,  even  by  an  act  of  legislation  there. 
Attorney-General  v.  Butter,  4  Eng.  Ch.  Rep.  408. 

Much  has  been  said  about  the  past  and  present  unpro- 
ductive quality  or  character  of  this  fund.  But  as  soon  as 
this  case  is  decided,  and  the  long-continued  litigation  over 
this  will  is  terminated,  I  have  no  doubt  a  plan  will  be 
adopted  to  render  this  real  fund  more  productive  than  it 
would  be  if  sold  and  the  proceeds  were  invested  in  per- 


THARP  v.  FLEMING.  591 

sonal  securities  paying  six  per  cent.  The  Court  is  too  fa- 
miliar with  the  history  of  this  unfortunate  will,  and  the 
long  litigation  and  numerous  lawsuits  which  have  arisen 
in  regard  to  it,  to  render  it  necessary  for  me  to  do  more 
than  simply  to  allude  to  them,  in  order  to  show  why  this 
plan  has  thus  been  delayed  and  postponed,  and  why  the 
fund  has  been  comparatively  barren  and  unproductive  up 
to  the  present  time.  But  a  better  and  brighter  prospect 
for  the  future  is  now  dawning  upon  it,  and  as  this  is  likely 
to  be  the  last  of  the  long  series  of  suits  and  controversies 
which  have  grown  out  of  it,  I  think  I  can  confidently  as- 
sume that  the  time  is  near  at  hand,  when  the  results  of 
it  will  be  quite  different,  and  when  it  will  annually  become 
more  and  more  valuable  and  productive  than  even  the 
most  sanguine  has  ever  anticipated  from  it. 

But  to  return  to  the  point  from  which  I  have  digressed; 
here  the  machinery  is  prepared  and  appointed  in  the  will 
for  the  distribution  of  the  benefits  of  the  charity  among 
those  who  are  to  be  the  recipients  of  it,  and  there  is  there- 
fore no  ground  for  the  parental  relation  of  the  sovereigns 
in  regard  to  it.  The  power  of  the  Court  of  Chancery  over 
the  subject,  so  as  to  assist  in  the  execution  of  the  purposes 
of  the  charity,  is  derived  from  no  such  relation,  but  is  a 
part  of  its  original,  inherent  and  equitable  jurisdiction 
over  trusts,  as  such  ;  and  courts  of  chancery  have  always 
regarded  charities  as  peculiarly  sacred,  because  they  are 
voluntarily  made  by  good  men  for  benevolent  objects  and 
for  no  selfish  purpose.  And  as  no  case  has  been  or  can 
be  produced,  in  which  this  or  any  other  State  has  ever 
ordered  the  sale  of  real  estate  devised  to  charitable  objects, 
by  a  valid  and  sufficient  will,  I  cannot  but  feel  confident 
that  this  tribunal  will  sustain  and  affirm  the  interlocutory 
decree  or  order  of  the  court  below  in  the  premises. 

Mr.  Bates,  in  reply :  I  am  now  apprised  of  the  precise 
ground  on  which  the  validity  of  this  act  of  the  Legislature 
is  denied,  and  I  must  say  that  I  am  surprised  that  the 
ground  is  now  taken,  that  there  is  no  power  anywhere  to 


592     COUET  OF  ERRORS  AND  APPEALS. 

convert  this  real  estate  into  a  personal  fund  for  the  pur- 
poses of  the  charity,  and  that  these  lands  are  inexorably 
consigned  to  utter  and  perpetual  unproductiveness.  The 
ground,  nevertheless,  is  now  taken  that  the  testamentary 
power  of  the  testator  is  supreme  over  the  subject,  and  su- 
perior to  the  sovereign  power  of  the  government,  and  to 
the  remedial  power  of  the  Legislature  for  the  benefit  of  the 
charity,  if  in  its  opinion  the  devise  has  become  inadequate 
to  the  purposes  of  it,  and  an  exigency  should  arise  when 
the  interposition  of  its  remedial  authority  should  become 
necessary  to  effectuate  the  objects  of  the  testator.  But 
the  cases  cited  in  my  opening  clearly  establish  the  prin- 
ciple that  the  Legislature  possesses  this  power.  And  where 
is  the  danger  to  be  apprehended  from  the  exercise  of  it  ? 
If  it  has  never  been  done  before  in  this  State,  it  is  because 
no  case  has  before  arisen  to  require  it. 

What  constitutes  a  public  or  private  charity,  is  imma- 
terial in  regard  to  this  question.  But  I  cannot  agree  in 
the  definition  and  distinction  stated  on  the  other  side. 
The  question  does  not  depend  upon  the  fact,  whether  the 
Chancellor  is  to  assume  the  administration  of  the  charity, 
or  trustees  are  appointed  for  that  purpose ;  but  rather 
upon  the  number  of  persons  to  be  benefited  by  it.  A 
private  charity,  strictly  speakings  is  treated  and  regarded 
in  England  as  a  trust  merely. 

By  the  Court :  The  decree  of  the  Chancellor  was  unani- 
mously affirmed ;  the  Court  holding  that  inasmuch  as  it 
had  already  been  decided  in  the  Court  of  Errors  and  Ap- 
peals that  the  devise  in  trust  of  the  real  estate  in  question 
by  the  testator  to  be  rented  and  not  sold,  or  in  perpetuity 
for  the  purposes  of  the  charity  mentioned,  was  a  valid  de- 
vise, it  was  not  in  the  power  of  the  Legislature  to  autho- 
rize and  direct  the  sale  and  conversion  of  it  into  person- 
alty, even  for  the  purposes  of  the  trust;  because  it  was 
such  a  devise  as  the  testator  had  power  to  make  of  his  real 
estate  in  perpetuity,  for  the  purpose  stated,  it  being  a  de- 
vise in  trust  to  a  charity,  which  the  Legislature  had  not 


THARP  v.  FLEMING.  593 

the  power  to  repeal  or  modify,  or  to  divest  the  title  and 
estate  given  by  it ;  and  because  it  would  be  in  direct  con- 
travention of  the  will  of  the  testator,  which  in  this  respect, 
had  been  held  by  this  Court,  after  solemn  argument,  to  be 
valid  and  binding,  and  who  had  expressly  directed  in  the 
devise  in  question  that  the  land  should  not  be  sold,  but 
should  be  rented,  and  the  rents  and  profits  arising  from  it 
should  be  applied  to  the  objects  of  the  charity.  The  act  of 
the  Legislature  directing  the  sale  and  conversion  of  the 
real  estate  thus  devised,  into  personal  property  or  money, 
although  conceived  in  a  friendly  spirit  towards  the  object 
of  the  trust  and  charity,  and  was  enacted  with  the  design 
to  render  it  more  productive  and  effectual  for  the  purposes 
contemplated  by  the  testator,  was  therefore  an  act  which 
the  Legislature  had  no  power  over  the  subject-matter  to 
pass,  and  was  consequently  inoperative  and  void,  and  con- 
ferred no  power  on  the  commissioners  or  trustees  named 
in  it,  the  appellants,  to  sell  or  dispose  of  the  real  estate  in 
any  manner  whatever. 


SUPERIOR    COURT. 

FALL   SESSIONS. 
18  58. 


Levin  Pettyjohn  v.  David  Bloxom,  Administrator  of 
Nathaniel  Deputy,  deceased. 

Judgment  was  recovered  in  the  Superior  Court,  on  which  an  execution 
was  issued  to  the  sheriff  and  a  levy  made  by  him  on  the  defendant's 
goods  to  the  amount  of  the  debt  and  costs.  Afterwards,  but  before  sale 
of  the  goods,  the  defendant  sued  out  a  writ  of  error  and  gave  security, 
on  which  the  judgment  was  affirmed  in  the  Court  of  Errors  and  Ap- 
peals, and  judgment  of  affirmance  duly  entered  in  the  Qourt  below. 
Held,  that  the  writ  of  error  was  a  supersedeas  of  the  fi.  fa.  and  levy  on 
the  original  judgment  in  the  Court  below,  and  that  a  subsequent^?,  fa. 
issued  on  the  judgment  of  affirmance,  and  levy  and  sale,  was  regular. 

Rule  to  show  cause,  &c.  The  defendant  in  the  rule  had 
recovered  a  judgment  in  the  Superior  Court  for  Sussex 
County,  against  Pettyjohn,  the  plaintiff  in  the  rule,  on 
which  a  writ  of  fieri  facias  had  been  regularly  issued  and 
levied  on  the  goods  of  Pettyjohn  to  the  amount  of  the  debt 
and  costs.  Afterwards,  but  before  the  sale  of  the  goods 
by  the  sheriff,  Pettyjohn  sued  out  a  writ  of  error  on  the 
judgment,  and  gave  security  for  the  due  prosecution  of  it, 
on  which  the  case  was  removed  to*  the  Court  of  Errors  and 
Appeals,  and  where  the  judgment  in  the  Court  below  was 
afterwards  affirmed  and  the  record  remanded.  The  judg- 
ment of  affirmance  in  the  Court  above  was  duly  certified 
and  entered  on  the  record  of  the  case  in  the  Court  below, 


PETTYJOHN  v.  BLOXOM.  595 

pursuant  to  the  statute  ;  and  on  this  judgment  of  affirm- 
ance entered  in  the  Court  below,  the  defendant  in  the  rule, 
without  proceeding  any  further  with  his  previous  exe- 
cution and  levy  under  the  original  judgment,  sued  out  a 
writ  of  fieri  facias,  which  was  levied  on  the  goods  of  Petty- 
john, and  after  one  or  more  writs  of  venditioni  exponas  issued 
thereon,  the  same  were  sold  by  the  sheriff,  and  the  money 
returned  at  the  last  term  of  the  Court;  at  which  term  this 
rule  was  obtained  to  show  cause  wherefore  this  latter fi. fa., 
sued  out  upon  the  judgment  of  affirmance,  and  the  writs  of 
venditioni  exponas  and  the  sale  of  the  goods  thereon,  should 
not  be  set  aside  for  irregularity. 

C.  S.  Layton,  for  the  plaintiff  in  the  rule :  In  this  case 
the  second  fi.  fa.,  sued  out  upon  the  judgment  of  affirmance 
certified  from  the  Court  above  to  this  Court,  and  entered 
here  pursuant  to  the  statute,  was  irregular  and  must  be  set 
aside;  because  the  goods  seized  and  levied  upon  under 
the  former  fi.  fa.  on  the  original  judgment,  were  in  the 
custody  of  the  law,  and  the  levy  thereon  being  to  the  full 
amount  of  the  debt  and  costs,  was  prima  facie  a  satisfac- 
tion of  the  execution,  and  should  have  been  disposed  of  by 
venditioni  exponas  before  any  fi.  fa.  could  or  should  have 
been  issued  on  the  judgment  of  affirmance.  Under  the 
constitution  and  laws  of  this  State,  a  writ  of  error,  even 
when  security  to  prosecute  it  is  given,  is  not  a  supersedeas 
of  the  proceedings  in  the  Court  below,  but  only  a  stay  of 
such  proceedings  pending  the  writ  of  error.  Const.,  art.  6, 
sec.  19;  Revised  Code,  379,  sec.  17.  A  writ  of  error  is  no 
supersedeas  of  an  execution  issued  on  the  judgment  in  the 
Court  below  and  levied  by  the  sheriff.  Blanchard  v.  Myers, 
9  Johns,  66  ;  Kinney  v.  Whitford,  17  Johns,  34.  The  gene- 
ral rule  seems  to  be,  that  a  writ  of  error  operates  as  a  super- 
sedeas from  the  time  of  allowance,  and  stays  proceedings  in 
the  Court  below  only  until  the  errors  are  disposed  of,  but 
does  not  vacate  an  execution  and  levy  on  land.  2  V.  S. 
Dig.  177,  sec.  501. 


596  SUPERIOR  COURT. 

W.  Saulsbury,  for  the  defendant  in  the  rule  :  Under  the 
constitutional  and  statutory  provisions  of  this  State  on  this 
subject  (and  this  question  must  be  decided  solely  with  re- 
ference to  them,  and  not  by  precedents  cited  from  other 
States),  a  writ  of  error  as  soon  as  sued  out  and  security  is 
given  for  the  prosecution  of  it,  becomes  a  supersedeas  of  all 
executions  and  proceedings  on  the  judgment  in  the  Court 
below ;  for  although  the  word  stay,  instead  of  the  more 
technical  phrase  supersedeas,  is  the  term  employed  in  the 
constitution,  it  means  the  same  thing  and  nothing  less. 
But  the  8th  and  9th  sees,  of  chap.  110,  Rev.  Code,  390,  391, 
provide  that  the  prothonotary  of  the  Court  below,  to  whom 
a  record,  remanded  with  a  duly  certified  copy  of  the  pro- 
ceedings and  judgment  of  the  Court  of  Errors  and  Appeals, 
is  delivered,  shall  without  delay  tile  it,  and  enter  upon  the 
docket  of  the  Court  below,  in  connection  with  the  entries 
of  the  cause  in  said  Court,  the  said  proceedings  and  judg- 
ment of  the  Court  of  Errors  and  Appeals,  with  the  date  of 
making  such  entry  ;  and  the  entry  so  made  shall  be  a 
record,  and  the  judgment  so  entered  shall  have  the  same 
force  and  effect  as  a  judgment  of  the  Court  below,  and 
shall  be  executed  by  the  process  of  the  said  Court  in  like 
manner  as  judgments  of  said  Court.  Now,  in  this  case 
the  judgment  of  affirmance  'in  the  Court  of  Errors  and 
Appeals  was  thus  entered  in  this  Court,  with  the  addi- 
tional costs  which  had  accrued  in  that  Court,  and  thereby 
became  in  effect,  under  these  provisions  of  the  statute,  a 
judgment  of  this  Court,  to  be  executed  in  like  manner  and 
by  the  same  process  as  the  original  judgment;  or  in  other 
words,  it  became  a  second  and  subsequent  judgment  on 
the  records  of  this  Court  for  one  and  the  same  debt,  with 
an  additional  taxation  of  costs;  and  must  it  not  therefore 
be  held  to  be  itself  a  supersedeas  of  the  original  judgment 
and  all  the  proceedings  upon  it  previous  to  the  issuing  of 
the  writ  of  error,  and  would  it  be  competent  to  treat  it  as 
a  still  subsisting  judgment  of  this  Court,  on  which  any 
further  executions  or  proceedings  whatever  could  be  taken 
to   enforce  the  collection   of  it,  when   the  judgment  of  a 


PETTYJOHN  v.  BLOXOM.  597 

higher  court  and  of  superior  jurisdiction  and  of  later  re- 
covery stood  beneath  it  on  the  record  for  the  same  iden- 
tical debt  ?  Not  only  was  the  writ  of  error  a  supersedeas  of 
the  execution  and  levy  on  the  original  judgment,  but  is 
not  this  judgment  of  affirmance  necessarily  a  supersedeas  of 
that  judgment  and  of  all  the  proceedings  upon  it  prior  to 
the  removal  of  the  case  to  the  Court  above?  and  as  a  once 
subsisting  judgment  for  the  recovery,  enforcement  and 
collection  of  the  debt  by  any  execution  process  whatever 
upon  or  by  virtue  of  it,  is  it  not  practically  engrossed  and 
extinguished  by  the  subsequent  judgment  of  affirmance 
for  that  debt  with  the  additional  costs  incurred  in  the 
Court  above  ? 

By  the  Court,  Houston,  J. :  The  rule  must  be  discharged. 
At  common  law  a  writ  of  error  was  a  supersedeas  of  all 
proceedings  on  the  judgment  in  the  Court  below,  from  the 
time  it  was  sued  out  and  notice  of  it  was  served  on  the 
adverse  party;  and  this,  too,  without  security  for  the  pro- 
secution of  it.  Afterwards,  by  Parliamentary  enactments, 
security  or  bail  for  the  due  and  faithful  prosecution  of  it 
in  the  Court  above,  was  required  in  order  to  render  the 
writ  of  error  a  supersedeas  of  the  proceedings  on  the  judg- 
ment in  the  Court  below.  Rut  after  these  enactments,  when 
the  bail  or  security  was  given,  it  had  the  same  eft'ect  as  a 
supersedeas,  which  it  originally  had  at  common  law  without 
it;  and  the  only  object  of  our  constitutional  provision  on 
the  subject,  was  to  change  this  common  law  rule,  as  it  had 
before  been  changed  by  statutory  provisions  in  England. 
The  meaning  and  eft'ect,  therefore,  of  this  provision  of  our 
State  constitution  is,  that  when  sufficient  security  is  given 
for  the  prosecution  of  it,  the  writ  of  error  shall  be  a  super- 
sedeas of  all  proceedings  on  the  judgment  in  the  Court 
below.  It  is  true,  that  if  an  execution  issued  upon  it  is 
executed  before  the  writ  of  error  is  sued  out,  it  may  be  re- 
turned to  the  Court  below  afterwards ;  but  so  long  as  it 
remains  executable,  but  not  executed,  a  writ  of  error  with 
security  for  its  prosecution  is  a  supersedeas  of  it.     2  Tidd's 


598  SUPERIOR  COURT. 

Pr.  1072;  Lane  et  al.  v.  Bacchus,  2  T.  R.  44.  The  term 
adopted  in  the  constitution  is  slay  instead  of  supersedeas,  as 
was  observed  by  the  counsel  for  the  plaintiff  in  the  rule ; 
but  the  difference  is  only  verbal,  for  it  means  the  same 
thing.  If  the  judgment  below  is  reversed  in  the  Court 
above  on  the  writ  of  error,  of  course,  there  is  an  end  of  it 
as  a  judgment,  with  all  unexecuted  process  depending 
upon  it  when  the  writ  of  error  was  issued  and  the  security 
given  ;  but  if  it  is  affirmed,  then  the  judgment  of  affirm- 
ance is  entered  as  a  judgment  on  the  record  of  the  case  in 
the  Court  below,  to  be  executed  in  like  manner  and  by 
the  same  process  as  a  judgment  of  that  Court,  and  is  to 
have  the  same  lien  and  effect  under  the  statute  referred 
to,  Rev.  Code,  390,  391,  sees.  8,  9  $  10,  as  a  judgment  of 
that  Court.  But  in  the  latter  case  the  judgment  of  affirm- 
ance stands  in  lieu  of  and  becomes  the  substitute,  and  not 
the  duplicate,  of  the  original  judgment,  and  all  the  subse- 
quent proceedings  and  process  must  be  had  thereon  for 
the  collection  of  the  debt,  in  which  the  costs  accruing  on 
the  original  judgment,  with  the  interest,  are  added  to  the 
costs  incurred  on  the  writ  of  error  in  the  Court  above,  and 
execution  issued  for  the  debt  and  costs  as  thus  ascertained. 


Daniel  Currey  v.  Thomas  J.  Davis  et  al. 

A  verbal  agreement  between  the  owner  of  premises  and  another,  that  the 
latter  should  till  and  cultivate  a  crop  of  wheat,  corn  and  fodder  on  the 
premises,  upon  the  following  terms  and  conditions, — the  owner  to  fur- 
nish all  the  necessary  teams,  horses,  mules,  and  oxen,  and  the  food  there- 
for,  all  the  seed-wheat  and  corn  for  sowing  and  planting  the  crop,  and 
all  carts,  wagons,  ploughs,  harrows  and  agricultural  implements  for 
the  proper  cultivation  and  securing  the  same,  and  a  certain  quantity 
of  guano  for  manuring  the  crop,  the  other  to  do  all  the  labor  and  well 
and  faithfully  cultivate  the  crop  and  save  it  in  due  season  ;  the  owner 
to  have  two-thirds  of  the  wheat  and  corn,  and  one-half  of  the  fodder, 
and  the  latter  to  have  all  the  rest  and  residue  of  the  crop, — does  not  con- 


CURKEY  v.  DAVIS.  599 

stitute  a  demise  of  the  premises,  in  contemplation  of  law,  or  the  legal 
relation  of  landlord  and  tenant  between  them  ;  but  they  are  owners  or 
tenants,  in  common  of  the  crop  to  be  raised  on  shares,  and  the  interest 
or  property  of  the  owner  of  the  premises  in  it  is  liable  to  levy  and  sale 
on  a  writ  of  fieri  facias  issued  against  him. 

Action  sine  breve  and  case  stated.  The  following  were 
the  facts  of  the  case  submitted  to  the  Court.  Samuel 
Brown,  one  of  the  defendants,  was  the  owner  and  posses- 
sor of  certain  lands  and  premises  in  Cedar  Creek  Hun- 
dred, and  in  the  fall  of  1857,  entered  into  a  verbal  agree- 
ment with  James  Pettyjohn,  another  of  the  defendants, 
that  the  latter  should  till  and  cultivate  a  crop  of  wheat, 
corn  and  fodder  upon  the  premises  on  the  following  terms 
and  conditions  :  Brown  was  to  furnish  all  the  necessary 
teams,  horses,  mules,  and  oxen,  and  food  therefor,  and  all 
the  seed-wheat  and  corn  for  sowing  and  planting  the  crop, 
and  all  the  carts,  ploughs,  harrows  and  other  agricultural 
implements  for  the  proper  cultivation  and  securing  of  the 
same,  and  also  a  certain  quantity  of  guano,  to  be  delivered 
by  him  on  the  premises,  for  manuring  the  crop;  Pettyjohn 
to  do  all  the  labor,  and  to  well  and  faithfully  cultivate  and 
tend  the  crops  and  save  them  in  due  season  with  the  teams 
and  implements  so  furnished,  and  Brown  to  have  two- 
thirds  of  the  crop  of  wheat  and  corn,  and  one-half  of  the 
fodder;  which  contract  was  in  all  respects  performed  by 
the  said  Brown  as  agreed  upon  between  them,  and  who 
also  assisted  Pettyjohn  in  sowing  the  wheat  and  ploughing 
the  land  for  it,  and  furnished  a  machine  for  threshing  it, 
and  assisted  in  threshing  it;  all  of  which  Pettyjohn  was 
bound  by  the  agreement  on  his  part  to  do  without  such 
assistance.  The  wheat  crop  had  been  saved  and  disposed 
of,  when  Currey,  the  plaintiff,  who  had  a  judgment  in  this 
Court  against  Brown,  sued  out  a  writ  of  fieri  facias  thereon, 
early  in  the  month  of  September,  in  the  present  year,  which 
the  sheriff  by  his  direction  had  levied  upon  the  said  crop 
of  corn  and  fodder,  then  growing  on  the  said  premises, 
and  all  the  right,  title,  property  and  share  of  Brown  to  and 
in  the  same;   and  that  after  the  levy  of  the  said  execution 


GOO  SUPERIOR  COURT. 


as  aforesaid,  each  of  the  said  defendants,  with  the  excep- 
tion of  Brown  and  Pettyjohn,  had  sued  out  writs  of  attach- 
ment on  judgments  which  they  severally  had  against 
Brown,  with  clause  to  summon  the  garnishees  of  the  lat- 
ter to  answer,  &c,  and  on  which  Pettyjohn  was  duly  sum- 
moned as  a  garnishee,  and  to  which  he  afterwards  appeared 
and  answered  that  he  paid  a  yearly  rent  for  the  premises 
to  Brown  of  two-thirds  of  a  crop  of  corn  and  one-half  of  a 
crop  of  fodder,  which  he  then  had  iu  his  posessiou  on  the 
land.  Previous  to  this,  however,  the  sheriff  had  proceeded 
to  sell  the  right  and  interest  of  Brown  in  the  crop  of  corn 
and  fodder  under  the  Ji.  fa.  and  levy,  of  which  the  plaintiff 
became  the  purchaser.  It  was  also  stated  and  admitted 
that  Brown  gave  notice  in  writing  to  Pettyjohn,  on  the 
30th  day  of  September,  1858,  to  leave  and  deliver  up  the 
premises  at  the  close  of  the  year. 

The  question  was,  whether  Brown,  on  this  statement  of 
facts,  had  such  an  interest,  right,  title,  or  property  in  the 
crop  of  corn  and  fodder,  as  was  subject  to  be  seized  in 
execution,  levied  upon  and  sold,unde,r  a  writ  of  fieri  facias  ; 
or,  on  the  contrary,  was  only  liable  as  rent  on  the  attach- 
ments ? 

E.  D.  Odlen,  for  the  plaintiffs :  There  is  nothing  in  this 
case,  or  in  this  agreement,  to  constitute  the  legal  relation 
of  landlord  and  tenant  between  Brown  and  Pettyjohn  as 
to  these  premises,  or  the  crop  of  corn  and  fodder  grown 
upon  them.  It  was  not  in  contemplation  of  law  a  case  of 
demise,  or  lease,  or  parol  letting  of  the  premises  by  the 
former  to  the  latter,  on  a  render  or  payment  of  rent  as 
rent;  but  it  was  nothing  more  than  an  engagement  for 
Pettyjohn  to  till  and  cultivate  a  single  crop  of  wheat,  corn, 
and  fodder,  on  shares  for  Brown,  on  premises  belonging 
to  him;  Brown  to  supply  the  seed  grain,  and  all  the  teams, 
and  carts,  and  ploughs,  and  other  implements  required  for 
the  purpose,  and  the  guano  to  manure  the  land;  and  Petty- 
john to  perform  all  the  labor  in  cultivating  and  saving  the 
crop,  but  to  furnish  nothing  more  on  his  part;  for  which 


CURREY  v.  DAVIS.  601 

Brown  was  to  have  for  his  share,  but  not  as  rent,  two- 
thirds  of  the  wheat  and  corn,  and  one-half  of  the  fodder, 
as  an  equivalent  for  what  he  contributed  in  stock,  imple- 
ments, seed  and  manure,  as  well  as  land,  in  raising  the 
crop ;  and  the  tiller,  Pettyjohn,  to  have  the  residue  as  a 
compensation  for  his  work  and  labor  in  tilling  and  saving 
it.  The  latter  was  not  a  tenant  of  Brown's  in  the  legal 
sense  of  the  word,  but  was  a  mere  cropper  on  shares  for 
the  season  upon  the  land.  This,  therefore,  constituted 
them  nothing  more  than  tenants,  or  owners  in  common, 
of  the  crop,  while  growing  and  when  matured,  until  it 
was  severed  and  divided  between  them;  and  which,  of 
course,  gave  Brown  such  a  property  in  common  in  the  crop 
with  Pettyjohn,  as  was  subject  in  its  undivided  state  to 
seizure  in  execution,  and  levy  and  sale  on  a  writ  of  fieri 
facias  against  Brown,  like  any  other  goods  and  chattels  of 
his  held  in  common  with  others.  State  v.  Frame,  4  Harr. 
569;  3  Johns,  215;  8  Johns,  151;  8  Cow.  220;  lb  Wend.  379; 
10  Pick.  205;  1  Hill,  234;  3  Hill,  90. 

Lofiand,  for  the  defendants :  The  act  of  Assembly,  Rev. 
Code,  421,  provides  that  any  contract  or  consent,  pursuant 
to  which  a  tenant  shall  enter,  or  continue  in  possession  of 
land  or  tenements,  under  an  agreement  to  pay  rent,  shall 
be  a  demise.  In  this  case,  the  answer  of  Pettyjohn  on  the 
attachments,  states  expressly  that  he  was  to  pay  Brown  a 
yearly  rent  for  the  premises,  payable  in  kind,  that  is  to 
say,  a  portion  of  the  crop,  the  usual  mode  of  reserving  rent 
tor  such  premises  when  formally  demised,  or  leased  in  this, 
if  not  in  all  other  sections  of  the  State;  and  this  statement 
of"  Pettyjohn  cannot  now  be  controverted,  for  it  is  admitted 
in  the  case  stated.  It  was,  therefore,  nothing  more  nor 
less  than  a  parol  demise,  or  letting  of  the  premises  by 
Brown  to  him  for  a  single  year,  two-thirds  of  the  wheat 
and  corn  and  one-half  of  the  fodder  to  be  paid  as  rent  to 
lirown  for  the  premises  as  his  landlord,  in  consideration  of 
the  liberal  terms  on  which  the  land  was  leased  to  him. 
Then-  are  many  such  demises  in  the  lower  sections  o(  the 


602  SUPERIOR  COURT. 

State,  and  it  was  never  before  supposed  that  any  other 
relation  than  that  of  landlord  and  tenant,  in  its  legal  as 
well  as  popular  acceptation,  subsisted  between  such  par- 
ties, with  all  the  rights  and  incidents,  exemptions  and 
liabilities,  which  attach  in  law  to  that  relation. 

Gilpin,  Ch.  J.,  delivered  the  opinion  of  the  Court. 

We  do  not  think  that  the  facts  in  this  case  constitute,  in 
contemplation  of  law,  a  demise  of  the  premises  in  question 
by  Brown  to  Pettyjohn  on  a  render  of  rent,  so  as  to  estab- 
lish the  technical  or  legal  relation  of  landlord  and  tenant 
between  them;  but  that  it  must  be  regarded  and  considered 
as  nothing  more  than  an  agreement  for  raising,  at  their 
mutual  expense  and  labor,  a  crop  of  wheat,  corn  and  fod- 
der, on  shares  between  them ;  Brown,  in  consideration  of 
his  ownership  of  the  premises,  and  the  abundant  means 
which  he  was  to  furnish  under  the  agreement  towards 
making  the  crop,  which  was  all,  and  more  than  all,  that  a 
tenant  usually  furnishes,  except  the  mere  labor  in  planting 
and  tilling  the  crop,  to  have  two-thirds  of  the  grain  and 
one-half  of  the  fodder,  whilst  Pettyjohn  was  to  have  the 
residue  of  each;  which  were  the  shares  in  which  the  crop, 
when  thus  raised,  was  to  be  divided  between  them.  In 
the  agreement  itself,  as  stated,  nothing  is  said  about  leas- 
ing, or  letting  the  premises  to  Pettyjohn  as  the  tenant  of 
Brown;  and  nothing  is  said  about  rent,  as  rent,  to  be  paid 
by  him  to  Brown  for  them.  But  the  agreement  appears 
to  have  simply  been,  "  that  he  should  till  a  crop  of  wheat, 
corn  and  fodder,"  on  certain  premises  belonging  to  Brown, 
on  the  terms  and  conditions  stated;  thfc  latter  to  have  two- 
thirds  of  the  wheat  and  corn,  and  one-half  of  the  fodder, 
and  Pettyjohn  to  have  all  the  rest  and  residue  when  the 
crop  should  be  raised.  There  is  nothing  said  in  all  this 
about  paying  anything  as  rent,  or  as  a  yearly  rent,  for  the 
possession  and  enjoyment  of  the  premises  for  that  length 
of  time;  on  the  contrary,  it  is  rather  the  language  of  an 
agreement  merely  to  till  a  crop  on  shares,  and  to  divide  it 
between  them,  when  raised,  in  the  proportions  mentioned. 


CURREY  v.  DAVIS.  603 

And  this  would  constitute  them  owners,  or  tenants  in  com- 
mon of  the  crop  whilst  growing  and  when  matured,  until 
it  was  severed  and  so  apportioned  between  them;  and 
which,  of  bourse,  would  give  Brown  such  an  undivided  in- 
terest or  property,  in  common  with  Pettyjohn,  in  the  crop, 
as  would  be  liable  to  levy  and  sale  on  aji.fa.  against  him. 
The  case  cited  from  4  Harr.  569,  State  v.  Frame,  though 
on  an  indictment  for  larceny,  proceeds  on  this  ground; 
and  all  the  cases  cited  by  the  counsel  for  the  plaintiff  re- 
cognize and  establish  this  distinction.  In  the  language  of 
one  of  those  cases,  Pettyjohn  must  be  regarded  rather  in 
the  light  of  a  mere  cropper  than  as  a  tenant,  under  the  facts 
stated.  Had  this  agreement,  however,  constituted,  in  the 
opinion  of  the  Court,  a  demise  in  law  of  the  premises  to 
him,  on  a  reservation,  or  payment  of  rent  as  such,  though 
by  parol,  the  only  process  by  which  Brown's  interest  or 
claim  of  rent  could  have  been  reached  by  his  creditors, 
would  have  been  by  writs  of  attachment  laid  in  the  hands 
of  the  tenant,  under  the  provision  of  the  statute.  Rev.  Code, 
430,  sec.  67;  and  in  that  case  judgment  would  have  been 
rendered  for  the  defendants.  There  is  nothing  stated  in 
the  case  inconsistent  in  the  slightest  degree  with  the  view 
which  we  have  taken  of  it,  except  the  answer  of  Pettyjohn 
on  the  attachments,  and  the  written  notice  from  Brown  to 
him  to  leave  the  premises  at  the  close  of  the  year.  But 
these  were  declarations  and  acts  of  the  parties  themselves 
respectively,  after  the  contract  had  been  entered  into,  and 
had  for  the  most  part  been  performed  by  them;  and  neither 
is  sufficient  or  admissible  to  control  the  legal  construction 
of  the  agreement,  as  it  was  concluded  between  them,  and 
has  been  submitted  to  us  for  our  consideration  and  deci- 
sion, by  other  parties  who  have  rights  and  interests  depend- 
ing upon  it.  Judgment  must,  therefore,  be  entered  for 
the  plaintiff. 


604  SUPERIOR  COURT. 


Nathaniel  Vaughan,  defendant  below,  Appellant,  v. 
Aaron  Marshall,  plaintiff  below,  Respondent. 

A  partial  payment  made  within  twenty  years  on  a  judgment  of  longer 
standing,  will  rebut  the  legal  presumption  of  its  payment ;  but  if  the 
parties  have  subsequent  dealings  within  that  time  and  the  plaintiff  falls 
in  debt  to  the  defendant  on  book  account,  he  cannot  indorse  the  amount 
on  the  record  as  a  credit  to  the  judgment,  so  as  to  rebut  the  presump- 
tion of  its  payment,  unless  it  be  further  shown  that  they  have  had  a 
settlement  of  their  subsequent  dealings,  and  it  was  so  agreed  between 
them. 

On  appeal  from  a  justice  of  the  peace.  The  action  be- 
low was  a  scire  facias,  at  the  suit  of  Marshall,  on  a  judgment 
recovered  by  him  against  Vaughan,  before  Peter  Hall,  for- 
merly a  justice  of  the  peace,  on  the  10th  day  of  July,  1830, 
for  $20.88  and  costs. 

Marshall,  the  plaintiff  below,  gave  in  evidence  the  record 
of  the  original  judgment;  also  his  book  of  account  against 
Vaughan,  which  showed  subsequent  dealings  between  them, 
in  which  he  became  a  debtor  to  Vaughan  within  the  last 
twenty  years,  in  the  sum  of  $9.27,  and  which  he  had  after- 
wards entered  as  a  credit  on  the  record  of  the  judgment, 
which  he  relied  on  to  rebut  the  presumption  of  payment 
arising  from  the  lapse  of  time  since  the  recovery  of  it. 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  Payment  of 
the  original  judgment  below  is  pleaded,  and  the  defendant 
below  relies  on  the  legal  presumption  that  it  is  paid,  re- 
sulting from  the  length  of  time,  more  than  twenty  years, 
which  has  elapsed  since  it  was  recovered,  to  sustain  the 
plea.  But  on  the  other  side,  it  is  proved  that  the  parties 
have  had  subsequent  dealings  within  the  last  twenty  years, 
and  that  Marshall  has  fallen  in  debt  to  Vaughan,  on  book 
account,  to  the  amount  of  Si*. 27,  which  was  afterwards  in- 
dorsed by  him  on  the  docket  of  the  justice  as  a  credit  to 
the  judgment.  This  is  an  action  of  scire  facias  on  that 
judgment  coining  up  here  on  appeal,  in  which  it  would  he 


WINDSOR  v.  BOYCE.  G05 

competent  for  the  plaintiff  in  it,  to  prove  a  partial  payment 
of  the  judgment  within  twenty  years,  to  rebut  the  pre- 
sumption before  referred  to ;  but  it  must  be  a  payment  on 
the  judgment,  not  a  mere  matter  of  cross  demand  due  the 
defendant  below,  but  the  plaintiff  here,  on  book  account; 
unless  it  is  further  shown  and  proved  that  the  parties  have 
had  a  settlement  of  their  subsequent  dealings,  and  it  had 
been  agreed  between  them  that  the  balance  due  Vaughan, 
the  plaintiff  here,  on  the  settlement,  should  be  a  credit  on 
the  judgment.  But  without  such  further  proof,  the  mere 
act  of  the  plaintiff  below,  in  indorsing  this  credit  on  the 
judgment,  cannot  have  the  effect  to  repel  the  presumption 
of  its  payment. 

Verdict  for  defendant  below. 

E.  D.  Cidlen,  for  plaintiff. 

Robinson,  for  defendant. 


John  K.  Windsor  v.  James  Boyce. 

When  the  plaintiff  in  an  action  of  replevin  relies  only  on  a  wrongful  de- 
tention of  the  property,  it  is  quite  as  necessary  in  general  that  he  should 
prove  a  demand  and  refusal,  in  order  to  establish  the  wrongful  de- 
tention, as  it  is  to  establish  a  conversion  of  the  property  in  an  action 
of  trover. 

This  was  an  action  of  replevin  for  a  negro  slave  by 
John  K.  Windsor  against  James  Boyce.  The  pleas  were 
non  cepit,  property  in  the  defendant,  property  in  one  John 
Windsor,  and  the  act  oi'  limitations.  The  slave  was  in 
the  possession  of  the  defendant,  but  the  only  matter  in 
dispute,  so  far  as  it  was  exhibited  in  the  testimony  to  the 
court  and  jury,  was,  whether  the  slave  was  the  property  of 
John  K.  Windsor,  the  plaintiff,  or  of  John  Windsor,  When 
the  counsel  for  the  plaintiff  had  closed  his  evidence, 


606  SUPERIOR  COURT. 

W.  Saulsbury,  for  the  defendant,  submitted  a  motion 
for  a  nonsuit.  We  have  had  a  good  deal  of  testimony  as 
to  the  conflicting  claims  of  John  K.  "Windsor,  the  plain- 
tiff, and  John  "Windsor,  to  the  slave  in  question,  but  no 
proof  whatever  as  to  the  wrongful  taking,  or  the  wrongful 
detention  of  him  by  the  defendant.  There  is  no  evidence 
that  he  came  into  his  possession  wrongfully,  and  no  de- 
mand by  the  plaintiff  upon  the  defendant  for  him  has  been 
proved,  to  show  a  wrongful  detention  of  him  ;  and  without 
proof  of  one  or  the  other,  the  plaintiff  cannot  recover. 
Besides,  no  evidence  has  been  adduced  to  show  where  he 
was  taken,  neither  as  to  the  hundred,  nor  the  county, 
which  was  necessary,  as  the  action  of  replevin  is  local  and 
not  transitory. 

E.  D.  Cidlen,  for  the  plaintiff:  The  narr  is  in  blank  as 
to  the  place  of  the  taking;  but  if  the  defendant  designed 
to  make  the  place  or  close  in  which  the  slave  was  taken 
material,  he  should  have  pleaded  specially  to  that  matter, 
that  is  to  say,  he  should  have  pleaded  cepit  in  alio  loco, 
which  he  has  not  done.  Furthermore,  our  act  of  Assem- 
bly provides,  Rev.  Code,  379,  sec.  12,  that  it  shall  not  be 
necessary  in  any  declaration,  or  other  pleading,  to  lay  the 
venue  in  the  county  in  which  the  action  is  brought,  nor 
to  set  forth  in  any  manner  the  place  in  which  the  act  is 
alleged  to  have  been  done,  unless  when,  from  the  nature 
of  the  case,  the  place  may  be  material,  or  traversable. 

Proof  of  a  demand  and  refusal  is  not  necessary  in  an 
action  of  replevin,  as  it  is  in  trover.  The  bringing  of  the 
action  itself  is  often  a  sufficient  demand.  The  defendant 
has  resisted  this  suit,  and  pleaded  property  in  himself  and 
in  John  Windsor,  and  totally  denies  the  right  of  the  plain- 
tiff to  this  slave;  and  this  of  itself  is  sufficient  to  establish 
and  show  a  wrongful  detention  at  least. 

Mr.  Saulsbury,  in  reply  :  The  plea  of  non  cepit  in  modo  et 
forma  puts  in  issue  the  place  of  the  taking  alleged  in  the 
narr,  and  though  the  close  is  omitted  and  left  in  blank  in 


CALLAWAY  v.  HEARN.  607 

the  declaration,  the  hundred  and  county  are  alleged,  and 
yet  there  is  no  evidence  as  to  any  taking  in  either.  The 
statutory  provisions  referred  to,  have  no  such  meaning  as 
the  counsel  supposes,  and  were  never  intended  to  abolish 
the  common  law  distinction  between  local  and  transitory 
actions. 

By  the  Court:  Prior  to  our  act  of  Assembly  on  the  sub- 
ject, the  action  of  replevin  was  limited  to  a  wrongful 
taking  of  goods  and  chattels  and  such  property  as  this  in 
this  State,  as  at  common  law,  and  a  wrongful  detention 
merely  was  not  sufficient  to  sustain  it.  Now,  however, 
the  action  will  lie  for  a  wrongful  detention  as  well  as  for  a 
wrongful  taking  of  personal  property.  But  in  either  case, 
the  fact  must  be  alleged  and  proved,  according  as  the  plain- 
tiff relies  upon  the  one  or  the  other;  and  where  there  is 
no  wrongful  taking,  but  only  a  wrongful  detention  is  the 
basis  of  the  action,  it  is  quite  as  necessary,  in  general,  to 
prove  a  demand  and  refusal,  in  order  to  establish  it,  as  it 
is  to  establish  or  prove  a  conversion  of  the  goods  in  an  ac- 
tion of  trover.  But  in  this  case  there  is  no  evidence  of 
either  a  wrongful  taking,  or  a  wrongful  detention  by  the 
defendant ;  and  the  motion  for  nonsuit  must  therefore  be 
granted. 


Joux  N.  Callaway  r.  Kendal  B.  Hearn. 

The  usual  acknowledgment  of  the  receipt  or  payment  of  the  consideration 
or  purchase-money  contained  in  the  body  of  a  deed,  is  prima  facie,  but 
not  conclusive  evidence  of  the  payment  of  it,  and  parol  evidence  is  ad- 
missible in  this  State  to  show  that  it  has  not  been  paid. 

If,  however,  the  grantor  in  the  deed,  after  the  date,  execution  and  delivery 
of  it,  gives  the  grantee  his  judgment  note  for  a  sum  of  money,  it  will 
create  a  presumption  that  the  consideration-money  for  the  deed  was 
paid  at  or  prior  to  the  date  of  the  note,  as  it  would  imply  a  settlement 
between  the  parties  at  that  time,  and  that  all  claims  and  demands  be- 
tween them  of  inferior  grade  ami  dignity  were  included  in  it,  and  were 


608  SUPERIOR  COURT. 

extinguished  by  the  security  of  a  higher  nature.  It  raises,  however,  at 
best,  but  a  presumption,  and  as  all  presumptions  of  this  character  may 
be  rebutted,  it  is  not  necessarily  conclusive. 
An  action  of  debt  for  such  a  claim  will  bo  barred  in  three  years  from  the 
delivery  of  the  deed,  the  time  when  the  cause  of  action  accrues,  unless 
some  subsequent  acknowledgment  of  it,  as  a  subsisting  demand  by  the 
defendant,  is  proved  to  the  satisfaction  of  the  jury. 

Tins  was  an  action  of  debt  to  recover  the  sum  of  $400, 
the  consideration-money  mentioned  in  a  deed  of  bargain 
and  sale  for  a  tract  of  land,  sold  and  conveyed  by  the 
plaintiff,  John  N.  Callaway,  to  Kendal  B.  Hearn,  the  de- 
fendant. The  pleas  were  nil  debet,  payment,  set  off,  ac- 
cord and  satisfaction,  act  of  limitations,  and  further,  that 
after  the  sale  of  the  said  land  and  delivery  of  the  deed,  the 
plaintiff  made  and  delivered  to  the  defendant  his  judg- 
ment note  for  $212,  with  lawful  interest  from  the  date  of 
it,  and  that  the  same  still  remained  wholly  unpaid  and  un- 
satisfied. 

The  deed,  dated,  executed  and  acknowledged  on  the 
25th  of  September,  1852,  for  the  land,  was  offered  in  evi- 
dence, the  consideration  of  which  was  $400,  and  contained 
in  the  body  of  it  the  usual  acknowledgment  of  the  pay- 
ment of  the  consideration-money,  but  no  receipt  for  it 
from  the  plaintiff  to  the  defendant  indorsed  on  the  back 
of  it.  No  witness  saw  the  deed  delivered,  but  it  was 
proved  on  the  part  of  the  plaintiff  that  the  defendant  had 
said,  subsequent  to  the  delivery  of  it,  that  he  had  not  paid 
the  plaintiff  for  the  land,  and  that  he  never  would,  until 
he  got  his  brother,  William  Callaway's,  right  to  it.  Also, 
that  his  sole  and  exclusive  title  to  the  premises  sold  was 
good  and  unquestionable,  and  that  his  brother,  William 
Callaway,  had  no  share  or  interest  whatever  in  them.  For 
the  defendant  it  was  proved  that  the  plaintiff  had  stated, 
some  six  or  seven  years  previous  to  the  trial,  that  he  owed 
the  defendant  four  or  five  hundred  dollars;  and  that  in 
reply  to  an  inquiry  why  he  had  sold  the  land  to  the  de- 
fendant, he  said  he  owed  him  between  four  and  five  hun- 
dred dollars,  he  expected.     It  was  also  proved  that  after 


CALLAWAY  v.  HEARN.  609 


the  sale  of  the  land  and  the  delivery  of  the  deed  and  the 
possession  of  the  premises  to  the  defendant,  the  plaintiff 
had  a  settlement  with  him  of  all  debts  and  accounts  be- 
tween them,  and  of  their  mutual  demands  against  each 
other,  when  the  $400,  the  consideration-money  to  be  paid 
for  the  laud,  was  brought  forward  by  the  plaintiff,  and 
when,  upon  a  full  settlement,  including  this  demand,  he  fell 
in  debt  to  the  defendant  in  the  sum  of  $212,  for  which  he 
in  a  few  days  afterwards,  on  the  12th  of  September,  1854, 
gave  his  judgment  note  to  the  defendant,  and  which  was 
duly  proved  and  given  in  evidence  ;  and  that  afterwards, 
on  the  24th  of  March,  1855,  he  gave  the  defendant  a  re- 
ceipt for  SI. 07  in  full  of  all  accounts  against  him. 

Upon  this  evidence  it  was  insisted  for  the  defendant,  1. 
That  the  usual  acknowledgment  or  receipt  of  the  payment 
of  the  consideration-money  incorporated  in  the  body  of 
the  deed,  being  under  seal,  estopped  the  plaintiff  from  de- 
nying that  the  purchase-money  for  the  land  had  been 
paid,  and  that  parol  proof  was  not  admissible  for  that  pur- 
pose. Dixon,  for  the  use  of  Berry,  v.  Swiggett,  1  Ilarr.  J* 
Johns,  252;  Steel  v.  Adams,  1  Greenl.  Rep.  1 ;  Skillenger  v. 
McCam,  6  Greenl.  Rep.  364  ;  Emory  v.  Chase,  5  Greenl.  Rep. 
232;  Davenport  v.  Mason,  15  Mass.  85,  6  T.  R.  62,  9  Reps. 
52;  Spike  v.  United  States,  9  Cranch,  28,  1  Campb.'  392,  2 
Ibid.  561 ;  Outten  and  wife  v.  Knowles,  4  llarr.  533 ;  lns- 
keip  v.  Shields,  4  llarr.  345,  2  Taunt.  141.  2.  That  the  ex- 
ecution and  delivery  of  the  judgment  note  for  $212,  by  the 
plaintiff  to  the  defendant,  alter  the  execution  of  the  deed 
and  delivery  of  the  possession  of  the  land  by  the  former  to 
the  latter,  extinguished  any  indebtedness  on  the  part  of 
the  defendant  to  the  plaintiff,  if  any  before  that  had  existed 
on  account  of  the  purchase  of  the  land,  or  for  any  cause 
whatever.  Because  if  a  party  takes  a  higher  security, 
having  at  the  same  time  a  lower  security  for  a  debt,  the 
law  presumes  the  lower  is  included  in  the  security  of  the 
higher  nature,  and  that  it  was  extinguished  by  it;  and  this 
principle  of  law  proceeded  on  the  presumption  of  a  settle- 
ment, as  had  been  proved  in  this  case,  between  the  parties 


610  SUPERIOR  COURT. 

at  the  time  the  higher  security  was  taken.  1  Ch.  PL  100  ; 
Cro.  Car.  415;  2  Bac.  Abr.  Debt.  (G.)  p.  290;  3  Bac.  Abr. 
Exting.  (£>.)  p.  106;  2  Johns,  213;  4  Pick.  442;  10  Pick. 
522.  3.  That  the  claim  of  the  plaintiff  was  barred  by  the 
act  of  limitations,  as  the  suit  was  not  commenced  until  the 
9th  day  of  October,  1855,  although  the  deed  was  executed, 
acknowledged  and  delivered  on  the  25th  of  September, 
1852,  at  which  time  the  cause  of  action  accrued. 

The  Court,  Gilpin,  Ch.  J.,  charged  the  jury :  The  plaintiff 
by  his  deed,  bearing  date  the  25th  of  September,  1852,  con- 
veyed to  the  defendant  certain  lands  for  the  consideration 
of  $400,  which  sum  it  is  alleged  has  never  been  paid,  and 
for  the  recovery  of  which  this  suit  has  been  instituted. 

In  the  body  of  the  deed  is  contained  the  usual  acknow- 
ledgment of  the  receipt  or  payment  of  the  consideration- 
money.  And  it  is  insisted  on  the  part  of  the  defendant 
that  the  plaintiff,  according  to  the  rules  of  law,  is  estopped 
from  denying  the  payment  of  the  purchase-money.  Such 
was  formerly  the  doctrine  held  in  England,  and  the  same 
doctrine  is  held  in  some  of  the  States  of  this  country. 
But  such  has  never,  that  we  are  aware  of,  been  recognized 
as  the  law  of  this  State. 

A  receipt  or  acknowledgment,  contained  in  the  body  of 
the  deed,  is  undoubtedly  prima  facie  evidence  of  payment 
of  the  consideration-money,  but  it  is  not  conclusive.  The 
fact  of  actual  payment  may  be  inquired  into,  and  may  be 
controverted,  and  it  is  competent  for  the  plaintiff  to  show, 
by  parol  evidence,  the  non-payment  of  the  consideration- 
money  mentioned  in  the  deed.  The  acknowledgment, 
however,  is  considered  sufficient  evidence  of  the  payment, 
until  rebutted  by  showing  the  contrary. 

The  first  question  therefore  to  be  considered  and  de- 
cided by  you  is,  whether  it  satisfactorily  appears,  from 
the  evidence  before  you,  that  the  consideration-money  was 
not  paid  at  the  time  of  the  execution  and  delivery  of 
the  deed.  If  it  was  so  paid,  then  there  is  an  end  of  this 
case.      Hut  if  it  w;is  not  so  paid,  then   it   becomes  ueces- 


CALLAWAY  v.  HEARN.  611 

sary  for  you  to  inquire  and  determine  whether  it  has  been 
paid  since  the  delivery  of  the  deed,  in  the  month  of  Sep- 
tember, 1852,  or  whether  the  plaintiff  was  at  that  time,  or 
at  any  time  since  the  delivery  of  the  deed,  and  prior  to  the 
bringing  of  this  suit,  indebted  to  the  defendant,  to  an 
amount  equal  to  the  consideration-money  of  the  deed  of 
$400,  with  its  interest. 

These  questions  you  will  decide  in  view  of  all  the  evi- 
dence which  has  been  submitted  for  your  consideration. 

It  has  been  shown  by  the  evidence  that  on  the  12th  of 
September,  1854,  the  plaintiff  gave  to  the  defendant  a 
judgment  note  for  $212,  and  that  on  the  24th  of  March, 
1855,  he  gave  the  defendant  a  receipt  for  $1.07,  in  full  of 
all  accounts.  And  it  is  insisted  by  the  defendant  that  the 
giving  of  the  judgment  note  creates  a  legal  presumption 
that  the  consideration  for  the  land  has  been  paid  at  or 
prior  to  its  date.  This  is  certainly  true  as  a  general  pro- 
position, and  if  this  fact  stood  alone,  without  other  circum- 
stances, it  would  be  entitled  to  great  weight;  as  it  would 
imply  a  settlement  between  the  parties  at  that  time,  and 
that  all  claims  and  demands  between  them  of  inferior 
grade  and  dignity  were  included  in  it,  and  were  extin- 
guished by  the  security  of  a  higher  nature.  It  raises,  how- 
ever, at  best,  but  a  presumption,  and  as  all  presumptions 
of  this  character  may  be  rebutted,  it  is  not  necessarily  con- 
clusive in  this  case.  We  say  it  is  not  necessarily  conclusive, 
for  this  will  very  properly  depend  upon  the  view  which 
the  jury  may  take  of  other  portions  of  the  evidence,  es- 
pecially that  which  has  reference  to  the  consideration  for 
which  the  judgment  note  was  given.  It  seems  that  the 
plaintiff  had  previously  become  indebted  to  the  defendant 
in  various  sums,  namely:  a  note  for  $150.85,  a  bill  for  $25, 
and  another  for  $8.75,  which  sums,  according  to  the  evi- 
dence, were  included  in  the  judgment  note  of  the  12th  of 
September,  1854,  for  £212. 

It  was  contended  on  behalf  of  the  plaintiff,  that  the  judg- 
ment note  was  given  for  securing  the  sums  just  mentioned, 
together  with,  perhaps,  some  other  small  demands,  without 


612  SUPERIOR  COURT. 


any  reference  whatever  to  the  consideration-money  men- 
tioned in  the  deed.  If  this  be  so, — that  is,  if  the  sum  of 
$400,  with  its  interest,  remains  unpaid,  then  the  plaintiff' 
will  be  entitled  to  recover  whatever  balance  may  be  found 
to  be  due,  after  deducting  the  sum  of  $212,  with  the  interest 
which  may  have  accrued  on  that  sum.  But  all  these  facts 
must  be  considered  in  connection  with  the  testimony  of 
William  S.  llearn,  and  the  receipt  of  the  24th  of  March, 
1855,  for  $1.07.  This  witness  stated  in  substance,  that  a 
few  days  before  the  judgment  note  was  given,  the  parties 
made  "a  full  settlement;"  that  they  "cast  up  their  accounts" 
on  a  slate;  that  the  plaintiff  "brought  forward  his  claim 
of  $400,"  being  the  amount  of  consideration-money  men- 
tioned in  the  deed,  and  that  after  deducting  this  sum  from 
the  claims  of  the  defendant,  there  remained  a  balance  of 
$212  due  to  the  latter;  and  that  for  this  sum  the  judgment 
note  of  the  12th  of  September,  1854,  was  given.  He  re- 
membered some  of  the  items  constituting  the  defendant's 
claim,  such  as  the  note  for  $159.85,  and  the  bill  for  $25, 
and  $8.75,  but  could  not  recollect  other  items  which  he 
said  were  taken  into  account  in  the  settlement.  His  op- 
portunities of  knowing  what  occurred  and  the  accuracy  of 
his  recollection  and  statement,  are  matters  proper  for  your 
consideration. 

But,  gentlemen,  if  you  believe  the  testimony  of  the  wit- 
ness William  S.  Hearn  (and  his  credit  for  veracity  lias  not 
been  attempted  to  be  impeached),  there  was  a  full  settle- 
ment between  the  parties,  in  which  the  sum  of  $400,  now 
in  controversy,  was  taken  into  consideration,  and  in  which 
a  balance  of  $212  was  found  due  to  the  defendant.  If 
this  be  true,  the  plaintiff  is  not  entitled  to  recover.  On 
the  other  hand,  if  you  should  be  of  opinion  from  the 
evidence  that  the  sum  of  $400  was  not  taken  into  con- 
sideration, and  that  the  defendant  is  actually  and  justly 
indebted  to  the  plaintiff,  then  you  should  find  for  the 
plaintiff  for  such  balance  as  may  remain  after  deducting 
the  sum  of  §212,  with  its  interest,  unless  you  shall  be 
satisfied  that  the  receipt  for  $1.07  was  a  final  settlement. 


HUTCHINSON  v.  HUTCHINSON'S  EX'R.        613 

The  weight  to  which  this  receipt  is  entitled,  is  a  matter  for 
your  decision. 

To  this  demand  of  the  plaintiff  the  defendant  has  also 
pleaded  the  statute  of  limitations,  as  to  which  we  have  to 
say  to  you,  that  if  the  suit  in  this  case  was  not  commenced 
within  three  years  after  the  accruing  of  the  cause  of  ac- 
tion, which  was  at  the  time  of  the  execution  and  delivery 
of  the  deed  to  the  defendant,  the  plaintiff  cannot  recover, 
unless  some  subsequent  acknowledgment  of  the  debt,  or 
of  some  part  of  it,  by  the  defendant,  as  a  subsisting  de- 
mand against  him  at  the  time,  made  within  the  three  years 
next  preceding  the  institution  of  the  suit,  had  been  proved 
to  the  satisfaction  of  the  jury;  in  which  event,  such  an  ac- 
knowledgment made  within  that  time  would  take  the  case 
out  of  the  operation  of  the  statute,  and  entitle  the  plain- 
tiff to  recover  to  the  extent  of  such  admission.  But  if  no 
such  acknowledgment  had  been  proved,  then  so  far  as 
the  plea  of  the  statute  of  limitations  was  concerned,  it  was 
an  absolute  bar  to  the  action,  if  the  suit  was  not  com- 
menced within  three  years  after  the  cause  of  action  ac- 
crued ;  and  if  such  was  the  case,  then  your  verdict  should 
be  fcfr  the  defendant. 

Verdict  for  plaintiff  for  $293.75. 

Moore  $  W.  Saulsbury,  for  the  plaintiff. 

C.  S.  Layton  and  E.  D.  Cullcn,  for  the  defendant. 


William  Hutchinson,  Jr.,  v.  Hutchinson's  Executor. 

In  a  case  at  issue  and  ready  for  trial,  the  Court  will  not  permit  the  plain- 
tiff and  hi?  attorney  to  proceed  to  trial  and  judgment,  if  an  injunction 
in  the  usual  form  be  issued  by  the  Chancellor  during  the  term,  enjoin- 
ing any  further  prosecution  of  the  suit  until,  &c,  although  the  object 


614  SUPERIOR  COURT. 

of  the  plaintiff"  is  merely  to  save  delay  and  expense,  and  to  proceed  no 
further  than  to  judgment  in  the  case. 

Scire  facias  on  a  judgment  in  this  Court,  at  issue  and 
ruled  for  trial  this  term.  A  writ  of  injunction  from  the 
Chancellor,  however,  had  been  issued  during  the  term  in 
the  usual  form,  enjoining  the  plaintiff  and  his  attorney  from 
further  prosecuting  the  aforesaid  scire  facias,  &c,  until,  &c. 

T.  F.  Bayard,  for  the  plaintiff,  now  applied  to  the  Court 
to  proceed  to  the  trial  of  the  case  to  verdict  and  judgment, 
notwithstanding  the  injunction,  merely  to  save  delay  in 
the  trial  and  recovery  of  judgment,  in  case  the  Chancellor, 
on  the  hearing  of  the  case  before  him,  should  conclude  to 
dissolve  the  injunction,  as  he  had  no  doubt  he  would.  He 
did  not  consider  the  injunction  could  prevent  him  from 
proceeding  to  trial  and  judgment  in  this  Court,  at  this 
stage  of  the  case,  although  it  would  stay  any  proceeding 
on  the  judgment  when  recovered.  The  rule  in  Chancery 
on  this  subject  is,  that  an  injunction  restrains  the  com- 
mencement of  an  action,  if  none  is  begun  when  it  issues ; 
but  if  the  action  is  actually  commenced  when  it  issues,  the 
plaintiff  may  proceed  to  trial  and  judgment,  and  it  only 
restrains  execution  on  the  judgment,  or  any  other  proceed- 
ing upon  it  afterwards.  Franco  v.  Franco,  2  Cox  Chan. 
Cases,  420;  3  Danl.  Chan.  1!'03. 

D.  M.  Bates,  for  the  defendant:  The  rule  in  equity  is  as 
stated  on  the  other  side,  in  cases  of  common  injunction,  but 
it  is  not  the  rule  in  cases  of  special  injunction.  3  Danl.  Chan. 
1811,  1818,  1833,  1844.  The  injunction  in  this  case  is  a 
special  injunction,  as  every  injunction  is  here;  for  we  have 
in  our  practice  no  such  thing  as  a  common  injunction,  as 
the  same  is  known  in  the  English  Chanoery.  And  the 
distinction  arises  from  the  construction  and  effect  which 
has  been  given  to  the  clause  which  is  always  inserted  at 
the  end  of  the  writ  of  common  injunction  which  issues  out 


HUTCHINSON  v.  HUTCHINSON'S  EX'R.        015 

of  the  Court  of  Chancery  there.  "  But  nevertheless,  the 
said  defendant  is  at  liberty  to  call  for  a  plea  and  to  proceed 
to  trial  thereon,  and  for  want  of  a  plea,  to  enter  up  judg- 
ment; but  execution  is  hereby  stayed."  This  is  the  con- 
clusion of  every  common  injunction  as  it  prevails  in  that 
country.  But  we  have  no  such  writ  here,  and  the  injunc- 
tion in  this  case  contains  no  such  saving — no  such  words. 
And  it  is  because  of  these  words  of  the  writ,  that  it  has 
been  held  and  settled  there,  that  if  the  declaration  has  been 
filed  when  the  writ  issues,  the  plaintiff  at  law  may  call  on 
the  defendant  to  plead  to  it,  and  on  the  plea  being  entered 
may  proceed  to  trial,  or  for  want  of  a  plea,  may  enter 
judgment  against  him.  But  if  the  declaration  in  the  cause 
is  not  filed  when  the  writ  issues,  then  no  declaration  can 
be  filed,  but  it  restrains  all  proceedings  in  the  case  from 
the  date  of  its  issue.  But,  as  I  have  before  remarked,  this 
rule  has  no  reference  to  a  special  injunction,  or  to  any  in- 
junction such  as  this;  for  what  will  be  considered  a  breach 
of  a  special  injunction,  must  depend  entirely  upon  the 
form  of  the  injunction  and  the  nature  of  the  act  to  be  pro- 
hibited.    3  Danl.  Chan.  1903,  1904,  1907. 

By  the  Court:  The  injunction  in  this  case  enjoins  the 
plaintiff  in  this  suit  "  absolutely  to  desist  from  further  pro- 
secuting the  aforesaid  scire  facias,"  as  well  as  from  attempt- 
ing in  any  manner  whatever,  to  enforce  the  payment  of 
the  judgment  on  which  it  issues.  This  is  a  special  injunc- 
tion both  in  form  and  effect,  and  conforms,  as  is  usual  in 
our  practice,  to  the  prayer  of  the  bill.  It  positively  and 
specially  prohibits,  among  other  things,  any  further  prose- 
cution of  the  action  in  this  case,  until  further  order  by  the 
Chancellor  to  the  contrary;  and  it  would  undoubtedly  be 
a  breach  of  these  terms  of  the  injunction,  on  the  part  of  the 
plaintiff  and  his  attorney,  if  this  Court  were  to  permit 
them  to  proceed  to  trial  and  judgment  now.  Besides,  if 
the  injunction  were  less  explicit  on  this  point,  it  has  always 
been  the  practice  of  this  Court  when   informed  that  an  in- 


616  SUPERIOR  COURT. 

junction  has  been  issued  by  the  Chancellor  in  any  case 
pending  here,  to  stay  all  proceedings  in  it,  until  the  in- 
junction is  disposed  of  in  his  Court;  and  we  therefore 
direct  all  further  proceedings  in  this  case  to  be  stayed. 


INDEX. 


ABANDONMENT.     See  Ejectment,  1,  4;  Dower,  1. 
ABATEMENT.     See  Pleadings,  1 ;  Appeal,  5. 
ABUTTALS.     See  Case  and  Trespass,  4. 
ACCEPTANCE.     See  Estates  of  Intestates. 

ACKNOWLEDGMENT.     See  Limitations  of  Actions,  2,  3,  4,  5; 

Deed,  6. 
ADMINISTRATORS.     See  Executors  and  Administrators. 
ADMISSIONS.     See  Deed,  1,  2;  Chancery,  1. 
ADULTERY.     See  Dower. 

ADVERSE  POSSESSION.     See  Possession,  3,  4,  Q. 
AGENT.     See  Principal  and  Agent. 
AGREEMENT. 

To  till  a  crop  on  shares  not  a  demise  of  the  land. 
See  Demise,  4.    Contracts. 
AMENDMENT. 

1.  A  motion  for  leave  to  amond  the  declaration  is  too  late  after  the 
Court  has  announced  its'  opinion  on  a  motion  for  a  nonsuit.  Morris 
v.  Burton,  213. 

2.  A  narr  in  the  detinuit  amended  to  a  narr  in  the  detinet  on  motion 
after  the  jury  was  sworn.     Jefferson  v.  Chase,  219. 

3.  The  declaration  may  be  amended  after  the  plaintiff  has  opened 
his  case  to  the  jury,  on  condition  of  paying  the  costs  of  the  term,  if 
the  amendment  is  such  as  to  require  a  continuance  on  the  part  of  the 
defendant.  But  if  it  is  not,  no  terms  will  be  imposed.  Doe  d.  Short 
et  al.  v.  Vrcttyman  et  al.,  334. 

4.  Leave  to  amend  will  only  be  granted  on  payment  of  the  costs  of 
the  term,  if  the  amendment  is  such  as  to  require  a  continuance  of  the 
case  on  the  other  side.      King  v.  Phillips,  349. 

5.  An  appeal  from  a  justice  of  the  peace  will  not  be  dismissed  be- 
cause his  certificate  to  the  transcript  states  merely  that  "  the  foregoing 
is  a  true  transcript  in  the  above  case  copied  from  my  docket;"  but 
the  same  may  be  amended.      Waters  v.  Kirby  et  al.,  304. 

40 


618  INDEX. 

AMENDMENT— Continued. 

6.  After  a  general  leave  granted  to  amend  the  pleadings  without 
qualification,  the  Court  will  not,  on  motion,  strike  out  a  plea  of  the 
statute  of  limitations  entered  under  the  leave.  But  if  objected  to  at 
the  time  of  the  application  to  amend,  after  issue  joined,  the  Court  will 
not  permit  it  to  be  entered.     Burton  v.  Rodney  and  Wife,  442. 

7.  Leave  to  amend  a  replication  will  not  be  granted  after  the  plain- 
tiff has  closed  his  testimony,  and  the  defendant  has  proceeded  to 
examine  witnesses  in  support  of  his  plea,  to  enable  the  plaintiff  to 
take  advantage  of  such  proof,  by  the  amendment  asked  for.  Woolman 
£  Sullivan  v.  Zebley  tj-  Morris,  459. 

APPEAL. 

1.  An  appeal  from  the  order  of  the  Register  directing  an  issue  of 
devisavit  vel  non  to  be  tried  before  a  jury  at  the  bar  of  the  Court,  is  a 
supersedeas  of  all  further  proceedings  thereon,  until  the  appeal  is 
determined. 

2.  On  appeal  from  the  order  of  the  Register  awarding  a  second 
issue  of  devisavit  vel  non,  after  trial  and  the  verdict  of  a  jury  against 
the  validity  of  the  will  on  a  former  issue  ordered  by  him,  the  Court 
will  not  enter  a  final  decree  against  the  will,  or  such  final  decree  as 
the  Register  should  have  made  under  the  circumstances ;  but  will 
reverse  the  order  and  remand  the  case  to  be  further  proceeded  in  by 
him.     Davis  v.  Rogers,  183. 

3.  An  appeal  from  a  justice  of  the  peace,  referred  out  of  Court 
under  a  rule  of  reference,  will  not  release  the  surety  in  the  appeal 
from  his  liability  on  the  recognizance.  McColleys  use  of  Warren,  v. 
Hickman,  234. 

4.  An  appeal  from  a  justice  of  the  peace,  where  the  cause  of  action 
survives,  will  not  abate  by  the  death  of  the  respondent  after  the 
appeal  is  taken  and  the  transcript  is  filed  in  Court,  but  before  citation 
is  served  upon  him  ;  and,  under  such  circumstances,  a  scire  facias  will 
lie  to  make  his  executor  a  party  to  the  appeal  in  Court.  Trustees,  $c, 
v.  Holcomb,  293. 

5.  If  the  declaration  in  appeal  from  a  justice  of  the  peace  fails  to 
correspond  with  the  transcript  of  the  suit  below,  in  the  names  and 
number  of  the  parties,  the  character,  or  right  in  which  they  sue,  or 
in  the  cause  or- form  of  action,  the  proper  mode  to  take  advantage  of 
it  is  by  motion  to  set  it  aside  for  irregularity,  and  not  by  plea  in 
abatement  on  the  ground  of  variance  between  the  narr  and  the  tran- 
script.    McDowell  v.  Simpson  and  Wife,  467. 

See  Amendment,  5;  Demurrer,  1. 
APPRENTICE.     See  Contracts,  6. 
APPROPRIATION.     See  Contracts,  4. 
APPURTENANCES.     See  Mill  Property. 
ASSAULT  AND  BATTERY. 

A  son  cannot  justify  an  assault  and  battery  in  defence  of  his  father, 


INDEX.  619 

ASSAULT  AND  BATTERY— Continued. 

if  the  latter  was  the  aggressor  and  a  trespasser  from  the  beginning  of 
the  combat  with  another ;  but  if  he  was  not,  the  son  can  then  only 
justify  such  a  degree  of  force  as  is  necessary  for  the  father's  defence 
and  security  from  the  attack  of  the  other  party.     Obier  v.  Neal,  449. 

ASSUMPSIT. 

1.  A  provision  in  th£  charter  of  a  company,  that  any  trustee  or 
manager  of  it,  who  had  contracted  debts  or  expended  money  for  the 
benefit  or  improvement  of  the  property  of  the  association  before  its 
incorporation  by  the  Legislature,  shall,  after  its  incorporation,  have 
a  claim  and  a  lien  on  the  proceeds  of  the  sale  of  such  property  be- 
longing to  the  company,  gives  a  legal  remedy  against  the  company, 
and  not  an  equitable  remedy  against  the  proceeds  of  such  sale  merely  ; 
and  an  action  of  assumpsit  may  be  maintained  for  the  recovery  of  it, 
to  be  paid  out  of  the  proceeds  of  the  sale  of  the  property.  Stephens  v. 
Green  Hill  Cemetery  Company,  26. 

2.  If  a  machinist  undertakes  to  construct  a  machine  for  the  in- 
ventor according  to  a  model  furnished  by  him,  and  to  supply  the 
materials  for  the  purpose,  and  he  constructs  it  so  unskilfully  as  to  be 
of  no  use  for  the  purpose  for  which  it  was  invented,  he  can  recover 
no  compensation  for  his  work  and  labor,  or  the  materials  supplied  by 
him.  But  it  is  otherwise,  if  the  failure  be  owing  to  defects  inherent 
in  the  model.     Davis  v.  Bonnewell,  460. 

See  Contracts.     Pleading,  2,  3. 

ATTACHMENT. 

The  interest  or  share  of  an  heir-at-law  in  a  recognizance  in  the 
Orphans'  Court  is  liable  to  attachment.      Crawford  v.  Elliott,  465. 
See  Foreign  Attachment.     Execution,  6. 

ATTORNEY.     See  Witness,  6. 
BAIL.     See  Foreign  Attachment,  1. 

BILL  OF  PARTICULARS. 

A  bill  of  particulars  does  not  restrict  the  party  furnishing  it  to  dis- 
tinct proof  of  the  several  matters  which  it  contains  ;  but  he  may  prove 
by  general  evidence  the  value  of  the  whole,  or  the  aggregate  of  his 
demand.     Stephens  v.  Green  Hill  Ceynetcry  Company,  26. 

BOARD  AND  LODGING.     See  Considkration,  1,  2. 

BONDS. 

1.  Parol  proof  that  a  bond  given  to  a  creditor  of  a  company  was 
accepted  by  him  in  lieu  of  all  other  claims  against  the  company,  is 
admissible,  and  docs  not  contradict,  or  vary,  or  add  t<>  the  terms  <>t' 
the  bond,  but  is  consistent  with  it.  Stephens  v.  (Ireen  Hill  Ceynetery 
Cvynpany.  27. 

2.  A  bond  with  warrant  of  attorney  to  confess  judgment,  given  to 
one  creditor  alone,  to  secure  a  debt  due  to  him,  and  also  debts  due  to 


620  INDEX. 

BONDS—  Continued. 

other  creditors  not  named  in  it,  if  given  with  their  knowledge  and 
consent,  is  valid  and  binding;  and,  when  collected  by  him,  the  credi- 
tors not  named  in  the  bond  may  sue  for  and  recover  their  respective 
claims  from  him.     Nicholson  v.  Hazel,  176. 

CAPIAS  AD  SATISFACIENDUM. 

No  writ  of  capias  ad  satisfaciendum  can  issue  on  a  joint  judgment 
against  several  defendants,  two  of  whom  were  free  white  citizens  of 
the  State,  notwithstanding  the  other  defendant  in  the  judgment  was 
a  non-resident,  and  the  other  two  were  not  arrested  under  the  writ, 
and  took  no  exceptions  to  it.     Fromberger  v.  Karsner,  290. 

CASE  AND  TRESPASS. 

1.  The  provisions  of  the  Revised  Code,  p.  379,  abolishing  the  distinc- 
tion between  actions  on  the  case  and  actions  of  trespass  at  common 
law,  was  simply  designed  to  prevent  a  party  who  had  misconceived 
his  form  of  action  in  either  instance  from  being  defeated  in  maintain- 
ing it  by  objections  to  the  form  of  action  merely,  either  on  a  motion 
for  a  nonsuit  or  by  the  direction  of  the  Court  to  the  jury,  or  in  any 
other  way,  based  on  the  technical  distinctions  existing  between  them 
at  common  law  ;  but  was  not  intended  to  abolish  all  distinctions 
between  the  actions  in  their  results  and  in  all  the  legal  incidents  and 
consequences  attaching  to  them  respectively  at  common  law. 

2.  Where,  therefore,  the  action  is  on  the  case,  when  at  common 
law,  and  but  for  the  provision  of  the  statute,  it  should  be  in  trespass, 
as  where  it  is  for  a  direct  and  immediate  injury,  or  trespass  to  land 
in  the  possession  of  the  plaintiff,  although  it  may  be  maintained,  and 
no  objection  can  be  taken  to  it  merely  on  account  of  the  form  of 
action,  it  must  still  be  regarded  in  effect  and  in  the  application  of  the 
rule-;  and  principles  of  law  which  must  control  and  govern  it  in  all 
other  respects,  as  an  action  of  trespass  for  the  same  injury  at  common 
law. 

3.  The  action  on  the  case  under  the  statute  being  therefore  in  effect 
an  action  of  trespass  for  such  an  injury,  it  is  incumbent  upon  the 
plaintiff  to  prove  that  he  was  in  the  actual  possession  of  the  land  at 
the  time  when  the  injury  or  trespass  was  committed,  in  order  to 
entitle  him  to  recover  lor  the  injury  in  such  action.  Hut  where  the 
injury  or  trespass  complained  of  is  the  erection  and  maintenance  of  a 
fence,  and  it  appears  from  the  evidence  that  the  defendant  came  into 
the  possession  of  the  place  in  question  after  the  erection  of  the  fence, 
peaceably  by  sale  and  conveyance  fmrn  the  party  who  had  previously 
<lis~ei/.ed  the  plaintiff  and  erected  it,  neither  case  nor  trespass  will  lie 
against  him  fir  maintaining  and  continuing  it ;  but  the  plaintiff  will 
be  put  to  his  action  of  ejectment  to  recover  the  seizin  and  possession 
of  the  premises,  and  afterwards  to  his  action  to  recover  for  the  injury 
committed  by  the  defendant  in  the  mean  time.  Cann  v.  Warren, 
1KH.  \H\K 

4.  No  description  of  the  close  necessary  in  an  action  on  the  case 


INDEX.  621 

CASE  AND  TRESPASS— Continued. 

under  the  statute  for  trespass,  and  if  alleged  in  the  narr  it  need  not 
be  proved.  '  But  it  is  otherwise  in  an  action  of  trespass  quart  clausem 
/regit.     Smethhurst  v.  Journey,  196. 

6.  The  statutory  provision  abolishing  the  common  law  distinction 
between  an  action  of  trespass  and  an  action  on  the  case,  Revised  Code, 
379,  was  never  intended  to  confound  all  the  rules  of  pleading  and 
evidence  heretofore  respectively  applicable  to  these  two  actions,  and 
to  blend  and  convert  them  substantially  into  one  and  the  same  action. 
It  was  only  designed  to  abolish  the  leading  and  characteristic  dis- 
tinction between  them  at  common  law,  depending  on  the  question 
whether  the  injury  complained  of  was  immediate  or  consequential 
only.     Bailey  v.  Wiggins,  299. 

6.  If  a  person  impounds  swine  damage-feasant,  and  kill  them  while 
so  in  his  possession,  or  injure  them,  so  that  they  afterwards  die  when 
set  at  large,  it  will  be  such  a  destruction  as  will  constitute  a  conver- 
sion in  law  of  the  property,  and  trover  will  lie  for  it.  But  if  the 
same  is  done  while  the  swine  are  damage-feasant,  or  running  at  large, 
and  not  so  in  his  possession,  trespass,  and  not  trover,  is  the  proper 
remedy. 

7.  The  provision  of  the  statute  in  regard  to  case  and  trespass  has 
not  abolished  the  distinction  between  the  two  actions  in  such  a  case. 
Cannon  v.  Horsey,  440. 

CAVEAT.     See  Vacant  Land. 

CERTIORARI. 

1.  Section  2,  chapter  52,  of  the  Revised  Code,  p.  144,  does  not  apply 
to  non-resident  free  negroes,  or  mulattoes,  who  were  residing  in  the 
State  at  the  time  when  the  Code  went  into  effect;  and,  if  such  come 
into  the  State,  they  are  not  liable  to  the  penalty  prescribed  in  that 
section. 

2.  In  a  proceeding  before  a  justice  of  the  peace,  under  that  section, 
it  should  affirmatively  appear,  both  in  the  information  and  the  adju- 
dication, that  the  defendant  docs  not  come  within  any  of  the  exemp- 
tions or  exceptions  contained  in  the  section.  Socum  ats.  The  State, 
204. 

3.  A  judgment  entered  upon  a  note  for  debt  and  interest  included 
up  to  the  time  of  its  entry,  by  virtue  of  a  warrant  to  a  justice  of  the 
peace,  authorizing  judgment  "  to  be  entered"'  for  the  above-mentioned 
sum,  together  with  interest  and  costs  of  suit,  is  good,  and  will  not  be 
reversed  on  certiorari.      Connoway  v.  Spicer,  '11  A. 

4.  A  writ  of  certiorari  is  barred  after  five  years,  and  will  not  lie 
where  there  is  no  judgment  ;  and  upon  these  grounds  will,  on  motion, 
be  dismissed.      Vaughn  v.  Marshall,  :"!48. 

5.  In  a  trial  before  a  justice  of  the  peace,  if  the  plaintiff  fails  to 
attend,  after  the  defendant  has  appeared  and  pleaded  a  set-otF,  the 
justice  should  enter  a  judgment  of  nonsuit  against  the  plaintiff',  and 


622  INDEX. 

CERTIORARI— Continued. 

not  a  judgment  by  default  in  favor  of  the  defendant,  on  his  plea  of 
set-off.     Adkins  v.  Jester,  352. 

6.  A  judgment  entered  without  stating  for  whom  it  was  rendered, 
aided  and  sustained  by  reference  to  the  report  of  the  referees  on  which 
it  was  rendered,  and  to  the  usual  docket  entry  of  the  names  of  the 
parties  on  the  margin  of  the  record.     Vangeazel  v.  Hillyard,  515. 

7.  When  a  summons  is  issued  by  a  justice  of  the  peace,  returnable 
forthwith,  on  the  representation  of  the  plaintiff  that  he  is  in  danger 
of  losing  the  benefit  of  the  process  by  delay,  the  representation  should 
be  supported  by  the  oath  or  affirmation  of  the  party  ;  but  if  the  defen- 
dant appears  and  goes  into  trial  without  excepting  to  it,  the  objection 
is  waived,  and  the  defect  cured.     Bishop  v.  Carpenter,  526. 

CHANCERY. 

1.  The  parties  to  a  partition  in  Chancery  are  estopped  from  denying 
the  title  of  another  party  to  it,  as  the  same  was  admitted  by  them  in 
the  proceedings,  and  was  adjudged  by  the  Chancellor  in  decreeing 
the  partition ;  which  is  final  and  conclusive  upon  the  parties  to  the 
partition  in  all  other  courts,  unless  appealed  from  and  reversed,  even 
though  they  may  differ  with  the  Chancellor  in  the  construction  of  the 
devise  on  which  the  partition  was  decreed  and  the  title  depended. 
And  the  decree  is  binding  and  conclusive,  not  only  as  to  the  rights 
which  the  parties  had  in  the  premises  at  the  time  of  the  partition, 
but  also  as  to  the  rights  which  they  had  subsequently  acquired  from 
other  heirs  of  the  premises  who  were  not  parties  to  the  partition,  and 
were  not  bound  by  the  admissions  or  the  decree  establishing  it.  The 
admissions  and  the  decree  will  bind  the  rights  of  a  married  woman 
who  was  with  her  husband  a  party  to  the  proceedings,  as  well  as 
others ;  but  if  the  husband  subsequently  acquires,  by  purchase  in  his 
own  right,  shares  in  the  premises  of  other  heirs  who  were  not  parties 
to  the  proceeding,  he  will  not  be  estopped,  as  to  the  shares  so  ac- 
quired, from  denying  the  title  admitted  and  decreed  in  the  partition 
to  which  he  was  a  party  with  his  wife  in  her  right.  Doe  d.  Short  et 
al.  v.  Prcttyman  et  nl.,  334. 

2.  In  a  case  at  issue  and  ready  for  trial  the  Court  will  not  permit 
the  plaintiff  and  his  attorney  to  proceed  to  trial  and  judgment,  if  an 
injunction  in  the  usual  form  he  issued  by  the  Chancellor  during  the 
term,  enjoining  any  further  prosecution  of  the  suit  until,  &c,  although 
the  object  of  the  plaintiff  is  merely  to  save  delay  and  expense,  and  to 
proceed  no  further  than  to  judgment  in  the  case;.  Hutchinson  v. 
Hutchinson's  Executor,  *513. 

CIVILITER  MORTUUS. 

The  maxim  of  civil  iter  ms>rtuus,  on  a  conviction  for  felony,  does  not 
apply  in  thi>  State.  Even  in  England,  the  disability  to  maintain  a 
ci\il  action  uiVr  a  conviction  for  treason  or  felony,  attaches  only  to 


INDEX.  623 

CIVILTTER  MORTUUS—  Continued.  . 

a  party  plaintiff,  and  must  either  be  pleaded  in  abatement  or  specially 
in  bar  to  the  action ;  but  any  subject  of  the  king  there,  convicted  or 
attainted  of  treason  or  felony,  may  be  sued  as  a  party  defendant  in  a 
civil  action.     Cannon  v.  Windsor,  143. 

CLOSE.     See  Cask  and  Trespass,  4. 

COMMON  CARRIERS.     See  Railroad  Companies. 

CONSIDERATION. 

1.  An  agreement  to  board  and  lodge  another  implies  an  engage- 
ment to  pay  the  usual  and  reasonable  attentions  to  the  health  and 
comfort  of  the  boarder  to  be  expected  under  the  circumstances;  and 
such  reasonable  and  customary  attentions  will  furnish  no  ground  for 
a  distinct  or  additional  charge  against  the  boarder. 

2.  There  is  nothing,  however,  in  this  relation  or  agreement  to 
entitle  the  boarder  to  expect  or  demand  of  the  family  boarding  him 
the  usual  and  often  arduous  attentions  and  services  of  a  nurse,  in  a 
case  of  extreme  or  protracted  illness,  without  paying  additionally  for 
such  services ;  but  if  such  services  are  rendered  by  the  wife  or  other 
member  of  the  family  through  a  series  of  years  to  an  infirm  and  aged 
boarder,  with  the  hope  and  expectation  merely  of  being  remembered 
in  his  will  and  rewarded  for  it,  by  devise  or  bequest,  after  his  death, 
it  will  furnish  no  ground  of  action  for  such  services  against  his 
executors.     Kennard  v.  Hobson's  Executors,  36. 

3.  If  a  woman  enter  into  an  express  contract  to  cohabit  and  live  in 
a  state  of  fornication  with  a  man,  the  immorality  of  the  consideration 
will  vitiate  the  contract,  and  no  action  will  lie  upon  it;  and  in  an 
action  for  work  and  labor  as  a  servant  in  his  family,  if  it  be  proved 
that  she  lived  and  cohabited  with  him  as  his  mistress  and  concubine, 
the  law  will  imply  no  contract  or  promise  to  pay  for  her  services. 
Walraven  v.  Frank's  Administrator ,  355. 

See  Assumpsit,  1,  2. 
CONTRACTS. 

1.  A  general  warrant  of  attorney  to  confess  judgment  on  a  bond 
cannot  be  varied  or  restricted  by  a  parol  agreement  not  to  enter  it  in 
this  State,  and  no  action  will  lie  on  such  agreement.  Logan  v.  The 
Farmers'  Bank,  35. 

2.  Although  a  son  cannot  recover  in  an  action  of  assumpsit  against 
the  executor  of  bis  father,  on  tbe  special  counts  upon  an  express  con- 
tract between  them  that  if  the  son  would  remain  with  bis  father  after 
lie  attained  bis  majority,  and  work  for  him  as  long  us  lie  lived,  the 
latter  would  leave  him  in  his  will  one-half  of  his  land  when  be  died, 
unless  the  contract  is  in  writing,  yet  be  may  recover  <>n  tbe  common 
counts  tor  tbe  value  of  tbe  work  and  labor  performed  by  him  under 
tbe  agreement,  provided  an  actual  or  express  promise  is  proved  on 
tbe  part  of  tbe  fatber  to  pay  or  compensate  him  for  bis  service.  But 
on   the  common   counts  for  work   and  labor  be  can  only  recover  tbe 


624  INDEX. 

CONTRACTS—  Continued. 

actual  value  of  his  services  as  proved,  and  not  the  value  of  tho  land 
which  the  father  agreed  but  failed  to  devise  to  him,  the  former  and 
not  the  latter  being  the  true  measure  of  the  damages  in  such  recovery. 
Watson  v.  Watson,  209. 

3.  When  a  contract  is  entered  into  for  an  article  not  then  in  exist- 
ence, but  which  is  afterwards  to  be  made  or  constructed,  it  does  not 
become  the  property  of  the  person  for  whom  it  is  to  be  made  until  it 
is  completed  and  delivered  to  him,  or  is  at  least  ready  to  be  delivered 
to  him,  unless  it  is  otherwise  specially  provided  in  the  contract.  For, 
notwithstanding  this  is  the.  general  principle  of  the  common  law  in 
such  cases,  it  is  competent  for  the  parties  by  express  agreement  to 
contract  that  the  article  shall  become  the  property  of  the  purchaser 
at  any  particular  stage  of  the  work  upon  it ;  but,  in  the  absence  of 
any  such  stipulation  between  them  in  the  contract,  the  general  prin- 
ciple of  the  common  law,  as  before  stated,  must  prevail  in  regard  to 
the  ownership  of  it. 

4.  A  contract  to  build  the  hull  of  a  sloop  at  a  stipulated  price  per 
ton,  to  be  paid  in  three  equal  instalments,  at  specific  stages  of  the 
work  as  it  progressed,  the  builder  to  find  all  the  materials  and  do  all 
the  work,  and  deliver  her  by  a  certain  day  to  the  purchaser  in  Phila- 
delphia, subject  to  the  inspection  of  two  persons,  if  required  by  him, 
does  not  appropriate  or  vest  the  property  in  the  vessel  during  the 
progress  of  the  work  in  the  purchaser,  although  he  has  paid  to  the 
builder  the  two  first  instalments  at  the  specific  stages  of  the  work 
agreed  upon  when  about  two-thirds  built;  but  the  ownership  of  the 
vessel  remains  in  the  builder,  and  may  be  seized  in  execution  and 
sold  in  that  condition  as  his  property  at  the  suit  of  his  judgment 
creditors. 

5.  If  abandoned  by  the  builder  after  the  levy  of  the  executions 
upon  it,  and  it  is  finished  by  the  party  for  whom  it  was  to  be  built, 
at  his  own  expense,  the  measure  of  damages,  in  an  action  by  the  pur- 
chasers at  the  sale  of  it  upon  the  executions,  to  recover  the  value  of 
it  from  him,  will  be  the  value  of  the  vessel  at  the  time  of  the  levy  of 
the  executions  upon  it.     Green  v.  Hall,  506  ;   Hall  v.  Green,  546. 

6.  Articles  of  agreement  under  seal  between  the  stepfather  and 
mother  of  a  minor  and  a  coachsmith,  by  which  the  former  placed  the 
minor  with  the  latter  to  learn  the  art,  trade,  and  mystery  of  coach- 
smithing,  after  the  manner  of  an  apprentice,  and  covenanted  that  he 
should  stay  with  the  latter  until  he  arrived  at  the  age  of  twenty-one 
years,  and  serve  him  faithfully  after  the  manner  of  an  apprentice, 
and  not  absent  himself  from  his  employ  without  his  consent,  the  latter 
covenanting  on  his  part  to  use  his  best  endeavors  to  teach,  or  cause 
the  minor  to  be  taught,  the  said  art  and  trade  of  coachsmithing,  and 
to  pay  tbe  parents  whilst  the  minor  should  remain  with  him  thirty 
dollars  jper  annum,  quarterly,  for  his  clothing,  and  to  allow  them  for 
his  boarding,  washing,  and  mending,  the  sum  of  $'2.1i">  weekly,  during 


INDEX.  625 

CONTRACTS—  Continued. 

said  term;  the  first  year's  boarding,  amounting  to  $117,  to  remain 
in  the  hands  of  the  latter  until  the  end  of  the  term  ;  when,  if  he 
served  out  his  time  faithfully,  as  a  good  and  faithful  apprentice  ought 
to  do,  the  same  was  to  be  paid  to  the  parents  or  the  survivor  of  them, 
if  then  living,  but  if  not,  then  to  the  son  himself;  are  not  void  as  con- 
travening either  the  letter  or  policy  of  the  statute  in  regard  to  in- 
dentures of  apprenticeship.  Such  an  agreement  is  but  a  private  con- 
tract, inter  partes,  to  be  performed  in  the  State. 

See  Demise,  4. 

CORPORATIONS.     See  Railroad  Companies;   Foreign  Corpora- 
tion. 

DAMAGE-FEASANT.     See  Trover,  1. 

DEATH,  PRESUMPTION  OF. 

If  a  person  leave  or  disappear,  the  presumption  in  favor  of  life  con- 
tinues until  a  period  of  seven  years  has  elapsed  without  any  tidings 
or  intelligence  of  him  ;  but  after  that  the  rule  is  reversed,  and  the 
law  presumes  his  death,  unless  the  contrary  be  shown.  Crawford  v. 
Elliott,  465. 

DEED. 

1.  If  a  deed  admitted  in  evidence  recites  another  deed  as  duly 
recorded,  it  will  not  be  necessary  to  produce  the  original,  nor  the 
record  of  the  recited  deed,  nor  to  account  for  the  absence  of  it,  to 
make  the  recital  of  it  evidence,  with  whatever  weight  its  connection 
with  the  other  proof  in  the  case  may  give  it.  Bartholomew  v.  Ed- 
wards, 17. 

2.  A  recital  in  a  deed  that  the  grantor  had  taken,  in  the  conveyance 
of  the  land  to  him,  only  fourteen  acres,  and  no  more,  of  the  premises 
in  dispute,  is  evidence  in  itself  of  the  fact  admitted  in  the  recital, 
and,  as  such,  concludes  the  parties  to  the  deed,  and  all  deriving  title 
under  it,  from  claiming  any  more  of  the  land.  Doe  d.  Jefferson  v. 
Howell,  178. 

3.  The  existence,  identity,  and  loss  of  a  deed,  are  questions  ad- 
dressed to  the  Court,  and  are  first  to  be  decided  by  it,  and  afterwards 
the  evidence  of  its  contents  goes  to  the  jury:  and  if  the  evidence  is 
irregularly  introduced  on  these  points,  and  is  left  in  terms  of  too 
general  import  in  the  charge  by  the  Court  to  the  jury,  the  Court  will, 
on  motion,  set  aside  the  verdict  and  grant  a  new  trial.  Bartholomew 
V.  Edwards,  247. 

4.  The  validity  of  a  deed,  acknowledged  and  recorded,  may  bo 
impeached  in  a  court  of  law,  by  proving  that  the  grantor  had  not 
sufficient  apprehension  and  understanding  to  make  a  deed. 

5.  The  only  consideration  stated  in  a  deed  being  that  the  grantee 
should  comfortably  clothe,  board,  and  lodge  the  grantor  during  his 
life,  held  to  be  a  sufficient  consideration  to  sustain  the  deed,  the  con- 


626  INDEX. 

DEED— Continued. 

dition  having  been  performed.    Doe  d.  Short  et  al.  v.  Prettyman  et  al., 
334,  335. 

6.  The  usual  acknowledgment  of  the  receipt  or  payment  of  the 
consideration  or  purchase-money  contained  in  the  body  of  a  deed  is 
prima  facie  but  not  conclusive  evidence  of  the  payment  of  it,  and 
parol  evidence  is  admissible  in  this  State  to  show  that  it  has  not  been 
paid. 

7.  If,  however,  the  grantor  in  the  deed  after  the  date,  execution 
and  delivery  of  it,  gives  the  grantee  his  judgment  note  for  a  sum  of 
money,  it  will  create  a  presumption  that  the  consideration-money  for 
the  deed  was  paid  at  or  prior  to  the  date  of  the  note,  as  it  would  imply 
a  settlement  between  the  parties  at  that  time  ;  and  that  all  claims 
and  demands  between  them  of  inferior  grade  and  dignity  were  in- 
cluded in  it,  and  were  extinguished  by  the  security  of  a  higher  nature. 
It  raises,  however,  at  best  but  a  presumption  ;  and,  as  all  presump- 
tions of  this  character  may  be  rebutted,  it  is  not  necessarily  conclusive. 

8.  An  action  of  debt  for  such  a  claim  will  be  barred  in  three  years 
from  the  delivery  of  the  deed,  the  time  when  the  cause  of  action 
accrues,  unless  some  subsequent  acknowledgment  of  it  as  a  subsisting 
demand  by  the  defendant  is  proved  to  the  satisfaction  of  the  jury. 
Callaway  v.  Hearn,  607,  608. 

DELIVERY.     See  Principal  and  Agent.    Trespass.     Contracts, 
3,  4,  5. 

DEMAND  AND  REFUSAL.     Sec  Replevin. 

DEMISE. 

1.  If,  after  a  tenant  has  given  three  months'  notice  in  writing  of 
his  intention  to  deliver  up  the  demised  premises  to  his  landlord  at  the 
end  of  the  year,  another  person  in  the  meanwhile  enters  into  posses- 
sion of  them  by  the  permission  of  his  wife,  the  husband  being  present 
and  having  knowledge  of  the  entry,  though  he  refused  his  permission, 
he  will  be  presumed  to  have  permitted  it  and  assented  to  it;  and,  if 
the  sub-tenant  holds  over,  he  will  be  liable  for  double  rent.  Morris 
v.  Burton,  213. 

2.  In  a  demise  of  lands  or  tenements,  whether  the  renting  be  for  a 
year  or  a  less  time,  or  at  will,  the  landlord  cannot  determine  it  without 
giving  the  tenant  three  months'  notice  in  writing  to  leave. 

3.  If  the  unlawful  eviction  of  the  tenant  from  the  demised  premises 
by  the  landlord  be  attended  on  his  part  by  circumstances  of  aggra- 
vation, and  the  trespass  be  gross,  the  jury  may  award  the  plaintiff 
exemplary  damages.     Bonsall  v.  McKay,  520. 

4.  A  verbal  agreement  between  the  owner  of  premises  and  another 
that  the  latter  should  tijl  and  cultivate  a  crop  of  wheat,  corn,  and 
fodder  on  the  premises,  upon  the  following  terms  and  conditions  :  the 
owner  to  furnish  all  the  necessary  teams,  horses,  mules,  and  oxen, 
and  the  food  therefor,  all  the  seed- wheat  and  corn  for  sowing  and 


INDEX.  627 

DEMISE—  Continued. 

planting  the  crop,  and  all  carts,  wagons,  ploughs,  harrows,  and  agri- 
cultural implements  for  the  proper  cultivation  and  securing  the  same, 
and  a  certain  quantity  of  guano  for  manuring  the  crop,  the  other  to 
do  all  the  labor,  and  well  and  faithfully  cultivate  the  crop  and  save 
it  in  due  season,  the  owner  to  have  two-thirds  of  the  wheat  and  corn 
and  one-half  of  the  fodder,  and  the  latter  to  have  all  the  rest  and 
residue  of  the  crop,  does  not  constitute  a  demise  of  the  premises  in 
contemplation  of  law,  or  the  legal  relation  of  landlord  and  tenant 
between  them,  but  they  are  owners  or  tenants  in  common  of  the 
crop  to  be  raised  on  shares  ;  and  the  interest  or  property  of  the  owner 
of  the  premises  in  it  is  liable  to  levy  and  sale  on  a  writ  of  fieri  Jacias 
issued  against  him.     Currey  .v.  Davis,  598. 

DEMURRER. 

1.  In  an  action  on  the  recognizance  against  a  surety  in  an  appeal  from 
a  ju.^tice  of  the  peace,  it  is  sufficient  to  aver  in  the  declaration  that 
the  suit  below  being  for  debt,  was  for  a  cause  of  action  within  the 
jurisdiction  of  the  justice  of  the  peace.  If  the  appeal  be  referred  out 
of  Court  under  a  rule  of  reference,  it  will  not  release  the  surety  from 
his  liability  on  the  recognizance ;  and  it  is  not  necessary  to  aver  in 
the  narr  that  he  consented  to  the  reference.  Neither  is  it  necessary 
to  allege  in  the  narr  that  the  justice  of  the  peace  had  jurisdiction  of 
the  person  of  the  defendant  in  the  action  before  him.  McColleys  use 
of  Warren  v.  Hickman,  234. 

2.  In  an  action  upon  a  judgment  recovered  in  another  State  it  is 
final  and  conclusive,  not  only  as  to  the  persons  who  were  parties  on 
the  record  to  it  there,  but  also  as  to  all  persons  who  should  have  been 
parties  to  it  there. 

3.  A  bond  given  by  two  members  of  a  firm  for  debt  ami  judgment 
confessed  upon  it  by  them  will  discharge  the  original  joint  liability 
of  a  third  partner  for  it,  because  it  changes  and  extinguishes  tin- 
original  nature  of  the  debt,  and  thereby  becomes  a  new  debt  of  a 
higher  grade  of  the  partners  giving  the  bond  and  confessing  the  judg- 
ment;  and  if  the  other  partner  afterwards  pays  the  amount  of  the 
judgment  to  the  plaintiffs,  and  takes  an  indorsement  of  it  to  his  own 
use  and  benefit,  it  cannot  be  pleaded  as  a  payment  or  defence  to  an 
action  on  the  judgment  for  the  use  of  such  partner  against  the  defen- 
dants. 

4.  A  person  for  whose  use  a  judgment  or  suit  is  indorsed  is  no 
party  to  it  in  a  legal  sense,  and  no  plea  addressed  to  his  right  merely 
to  maintain  the  action,  is  good. 

5.  The  payment  of  a  judgment  by  a  person  not  a  party  to  it  is  not 
a  satisfaction  or  extinguishment  of  the  judgment,  unless  it  was  so 
intended  to  be  by  the  person  paying  it  ;  and,  if  indorsed  for  his  use, 
it  cannot  be  pleaded  as  a  payment  by  the  defendant  in  an  action  upon 
the  judgment  against  him.     Sin/dam  <(•  Reed  v.  ('<i?ni<>n,  -I'll. 

6.  In   a  suit  bv  the  State  for  the  use  of  an  heir-at-law  on   an   ad- 


628  INDEX. 

DEM  U  RRER— Continued. 

ministration  bond  for  breaches  of  the  condition  in  not  filing  an  inven- 
tory of  the  goods  and  chattels  in  six  months,  and  not  rendering  his 
account  in  one  year  after  his  appointment,  it  is  no  defence  to  the 
action  to  plead  that  during  the  pendency  of  it  the  administrator  has 
been  duly  removed  from  office,  and  an  administrator  de  bonis  non  has 
been  appointed.  But  without  proof  of  special  damage  by  reason  of 
the  breaches  assigned,  the  plaintiff  can  only  recover  nominal  damages. 
State  use  of  Deputy  v.  Bloxom  $  Jones,  446. 

7.  In  declaring  upon  a  general  covenant  or  clause  in  a  written 
instrument,  with  a  qualification  or  exception  occurring  in  a  subse- 
quent and  distinct  clause  or  proviso  of  the  covenant  or  instrument, 
it  is  not  necessary  for  the  plaintiff'  either  to  state  or  negative  the 
qualification  or  exception  in  the  declaration.  New  Cattle  Common  v. 
Stevenson,  451. 

DEPOSITIONS. 

1.  When  the  return  to  a  commission  to  take  testimony  states  that 
the  depositions  were  taken  be/ore  the  commissioner  at  his  office,  with 
the  usual  jurat,  "sworn  and  subscribed  to  before"  him,  the  presump- 
tion is  that  they  were  taken  by  him,  and  are  admissible  as  evidence. 
Bailey  v.  Wiggins,  300. 

2.  Depositions  taken  on  a  commission  out  of  the  State  may  be  read 
in  evidence,  notwithstanding  the  deponent  is  present  in  court  and 
ready  to  testify  as  a  witness  at  the  trial  of  the  case.  Flinn  v.  Phila- 
delphia, Wilmington,  and  Baltimore  Railroad  Company,  469. 

DEVISE.     See  Wills,  Construction  of. 

DILIGENCE.     See  Execution,  1,  2,  3.     Railroad  Companies,  8. 

DIVORCE. 

Imbecility  of  mind  is  not  a  sufficient  ground  of  divorce,  unless  it 
amounts  to  idiocy  or  insanity.  Nor  will  intoxication  at  the  time  of 
the  marriage,  accompanied  with  circumstances  of  fraud,  combination, 
or  circumvention  on  the  part  of  the  father  and  friends  of  the  wife,  to 
induce  the  petitioner  to  marry  his  daughter,  give  the  Court  jurisdic- 
tion to  decree  a  divorce,  unless  the  petitioner  was  insane,  within  the 
meaning  of  the  act.     Elzey  v.  Elzey,  308. 

DOGS. 

A  dog  that  kills,  wounds,  or  worries  sheep,  may  be  killed  by  any 
person  with  impunity.     Milman  v.  Shockley,  444. 

DOWER. 

1.  A  wife  lived  with  an  adulterer  in  a  state  of  separation  from  her 
husband  until  his  death,  but  he  was  profligate  and  intemperate,  and 
frequently  inflicted  personal  violence  upon  her,  and  finally  abandoned 
her  several  years  before  his  death  and  lived  in  adultery  with  another 
woman.     Held  that  she  did  not  thereby  forfeit  her  dower. 


INDEX.  629 

DOWER—  Con  tinued. 

2.  A  demandant  in  dower  out  of  lands  in  the  bands  of  a  purchaser 
is  only  entitled  to  the  assignment  of  a  third,  according  to  the  value  of 
the  land  at  the  time  of  the  purchase,  and  not  according  to  the  en- 
hanced value  produced  by  improvements  made  at  the  expense  of  the 
purchaser  upon  them  subsequent  to  the  purchase.  Rawlins  v.  ButteU 
and  Wife,  224. 

DROVERS. 

A  drover  has  a  right  to  drive  his  herds  over  the  public  highways 
to  market;  and  if,  in  so  doing,  the  cattle  of  another  person  are  run- 
ning at  large  upon  the  public  road,  which  they  have  no  right  to  do, 
and  become  accidentally  mixed  with  the  drove,  and  are  driven  off 
with  it  without  his  knowledge,  he  is  not  liable  in  an  action  of  trespass 
for  taking  and  carrying  them  away.      Young  v.  Vaughan,  331. 

See  Railroad  Companies,  5. 
EJECTMENT. 

1.  If  a  party,  after  suffering  judgment  by  default  in  an  action  of 
ejectment,  relinquishes  or  abandons  the  possession  of  the  premises, 
no  length  of  possession  prior  to  it  will  avail  him  in  a  second  action 
of  ejectment  against  him  for  the  same  premises,  although  the  plaintiff 
did  not  enter  into  possession  on  his  abandonment  of  it.  Doe  d.  Bright 
v.  Stevens,  31. 

2.  An  action  of  ejectment  cannot  be  maintained  on  possession  alone 
short  of  twenty  years  against  a  mere  trespasser,  who  enters  without 
any  color  of  title  and  ousts  tue  party  in  possession.  Doe  d.  Jefferson 
v.  Howell,  178. 

3.  The  effect  of  a  recovery  in  an  action  of  ejectment  is  not  conclu- 
sive as  to  title;  but  it  is  evidence  of  the  right  of  possession  in  the 
party  recovering,  at  the  time  of  the  recovery. 

4.  A  judgment  by  default  in  a  former  action  of  ejectment  between 
the  same  parties,  legally  establishes  the  right  of  the  plaint'ff  to  the 
possession  of  the  premises  in  a  second  action  of  ejectment  between 
them  for  the  same  premises;  but  unless  it  is  followed  by  an  entry 
into  possession,  either  by  a  writ  of  possession,  or  without  writ,  but 
with  the  consent,  or  by  the  surrender,  or  abandonment  of  the  defen- 
dant, such  judgment  can  have  no  effect  on  the  defendant's  possession, 
or  upon  the  question  of  title,  founded,  upon  his  part,  on  an  actual  and 
•uninterrupted  adverse  possession  of  twenty  years'  continuance.  Doe 
d.  Bright  v.  Stevens,  240. 

See  Possession,  8.     Chancery,  1. 
ELECTIONS. 

Although  no  certificate  or  other  formal  mode  of  making  known  to 
a  person  his  election  to  the  office  of  road  commissioner,  or  other 
public  office,  may  be  prescribed  or  required  by  law,  the  result  of  the 
election,  when  ascertained  and  announced  at  the  close  of  it,  is  final 
and  conclusive  on  the  officers  of  the  election,  and  cannot  afterwards 


630  INDEX. 

EMBLEMENTS. 

be  reconsidered   or  altered   by  them.     State  ex  rel.  Wright  v.  War- 
ren, 39. 

At  common  law  every  one  who  has  an  uncertain  estate  or  interest 
in  land,  if  his  estate  is  determined  by  act  of  God  before  severance  of 
the  crop,  is  entitled  to  the  whole  as  emblements,  or  it  goes  to  his 
executor  or  administnitor.  If,  therefore,  the  husband  of  a  tenant  for 
life  is  in  possession  and  tills  the  land,  and  she  dies  before  the  crop  is 
gathered,  he  takes  the  whole  as  emblements ;  and  it  is  not  a  case  for 
apportionment  under  the  statute,  which  only  applies  in  cases  of  de- 
mise, as  where  the  tenant  for  life  has  rented  out  the  land,  and  his  life 
estate  determines  during  the  tenancy.     Spencer  v.  Lewis,  223. 

ERROR.     See  Writ  of  Error. 

ESTATES  OF  INTESTATES. 

Although  the  act  concerning  the  real  estates  of  intestates  provides 
that  on  ihe  appraisement  and  confirmation  by  the  Orphans'  Court  of 
the  real  estate  of  intestates,  the  value  of  the  lands,  according  to  the 
said  appraisement,  shall  be  substituted  in  the  place  of  said  lands, 
there  is  no  conversion  of  the  realty  into  personalty  until  acceptance 
at  the  appraised  value  and  assignment  by  the  Court,  or  sale  of  the 
same  by  the  order  and  confirmation  of  Court,  by  which  alone  the 
legal  estate  of  the  heirs  in  the  real  estate  is  divested  and  transferred, 
and  converted  into  its  equivalent  in  money,  to  be  secured  by  the 
recognizance.     State  use  of  Day  and  Wife  v.  Hirons,  252. 

ESTOPPEL.     See  Chanckry,  1.    Deed,  2. 

EVIDENCE. 

1.  A  recital  in  a  deed  that  the  grantor  had  taken,  in  the  convey- 
ance of  the  land  to  him,  only  fourteen  acres,  and  no  more,  of  the 
premises  in  dispute,  is  evidence  in  itself  of  the  fact  admitted  in  the 
recital,  and  as  such,  concludes  the  parties  to  the  deed,  and  all  deriving 
title  under  it,  from  claiming  any  more  of  the  land.  Doe  d.  Jefferson 
v.  Howell,  178. 

2.  The  record'  of  a  verdict  and  judgment  recovered  in  an  action  of 
trespass  a.  c.f.,  under  the  plea  of  not  guilty  alone,  by  the  plaintiff" 
against  a  disseizor,  for  a  trespass  committed  by  him,  is  not  admissible 
in  evidence  in  an  action  by  the  plaintiff"  against  the  alienee  of  thedis- 
seizor  who  comes  into  possession  peaceably  under  him,  for  continuing 
and  maintaining  the  trespass.     Cann  v.  Warren,  189. 

3.  The  existence,  identity,  and  loss  of  a  deed,  are  questions  ad- 
dressed to  the  Court,  and  are  first  to  be  decided  by  it,  and  afterwards 
the  evidence  of  its  contents  goes  to  the  jury;  and  if  the  evidence  is 
irregularly  introduced  on  these  points,  and  is  left  in  terms  of  too 
general  import  in  the  charge  by  the  Court  to  the  jury,  the  Court 
will,  on  motion,  set  aside  the  verdict  and  grant  a  new  trial.  Bar- 
tholomew v.  Edwards,  247. 

4.  The  record  of  a  suit  between  the  same  parties  is  admissible  in 


INDEX.  631 

EVIDENCE— Continued. 

evidence  in  a  subsequent  action  between  them,  although  it  may  not 
be  final  and  conclusive;  as  where  a  new  trial  has  been  asked  for,  and 
the  rule  granted,  and  the  question  upon  it  is  still  pending.  Chase  v. 
Jefferson,  257. 

5.  In  an  action  of  trespass  for  false  imprisonment  against  a  justice 
of  the  peace,  or  other  judicial  officer,  evidence  that  it  was  without 
probable  cause  and  from  malicious  motives,  against  the  plaintiff,  is 
irrelevant  and  inadmissible;  because  it  is  immaterial  in  such  action, 
provided  he  did  not  exceed  his  jurisdiction.     Bailey  v.  Wiggins,  299. 

6.  A  receipt  under  seal  is  conclusive,  and  cannot  be  contradicted 
by  parol  evidence.  Slate  use  of  Messick's  Administrator  v.  Mes- 
sick,  347. 

7.  Parol  proof  that  a  bond  given  to  a  creditor  for  two  thousand 
dollars  was  accepted  by  him  in  lieu  of  all  other  claims  against  the 
company,  is  admissible  and  does  not  contradict,  or  vary,  or  add  to  the 
terms  of  the  bond,  but  is  consistent  with  it.  Stephens  v.  Ghreen  Hill 
Cemetery  Company,  27. 

See  Witness.     Possession,  3,  4.     Death.     Bill  of  Particulars. 
Wills,  Probate  of.     Principal  and  Agent.     Vacant  Land. 

EXECUTION. 

1.  The  sheriff  is  bound  to  levy  an  execution  with  due  diligence  and 
without  any  delay  prejudicial  to  the  interests  of  the  plaintiff.  What 
is  a  reasonable  time  for  this  purpose  is  a  question  of  fact  for  the  jury 
to  decide,  under  the  circumstances  of  the  case  and  the  direction  of  the 
Court. 

2.  He  is  also  bound  to  levy  on  all  the  goods  of  the  defendant  in  his 
bailiwick  ;  and  the  fact  that  the  goods  had  all  been  levied  on  by  vir- 
tue of  prior  executions,  is  no  excuse  for  neglecting  to  levy  it  in  proper 
time.  Whether  a  subsequent  levy  on  goods  before  taken  in  execution 
would  be  available,  is  a  question  which  does  not  affect  the  duty  of  the 
sheriff  in  this  respect. 

3.  The  execution  being  issued  and  delivered  to  the  sheriff,  no  fur- 
ther orders  are  necessary  to  fix  his  liability,  or  that  of  his  sureties,  if 
he  neglects  to  do  his  duty,  and  loss  to  the  plaintiff  is  the  consequence 
of  such  neglect.  But,  at  the  same  time,  though  the  writ  is  the  man- 
date of  the  State  to  the  sheriff,  it  is  the  process  of  the  plaintiff,  and 
subject  to  his  control;  and  he  may,  by  contrary  orders,  stay  the  exe- 
cution, and  dispense  with   the  use  of  diligence   on    the    part   of  the 

•sheriff;  and,  for  this  purpose,  verbal  orders  are  sufficient,  and  need 
not  be  in  writing. 

4.  Peaches  on  the  trees  are  not  such  goods  and  chattels  as  may  be 
taken  in  execution  on  a  fieri  facias ;  but,  after  they  are  gathered,  this 
may  be  done.  Whether  from  their  perishable  nature,  and  the  neces- 
sity of  speedily  sending  them  to  market,  and  the  notice  and  delay 
necessarily  preceding  a  sale  by  the  sheriff,  such  a  levy  would  avail 


632  INDEX. 

EXECUTION— Gmtinued. 

the  plaintiff  in  the  execution  anything,  it  will  be  for  the  jury  to  de- 
cide.    State  use  of  Roe  v.  Oemmill,  9. 

6.  On  an  execution  against  a  single  partner  it  is  the  right  and  duty 
of  the  sheriff  to  seize  in  execution  the  whole  of  the  partnership  goods, 
and  to  sell  the  undivided  share  and  interest  of  the  partner  in  the 
goods,  and  if  he  deems  it  advisable,  to  prevent  their  being  wasted  or 
carried  away,  he  has  a  right  to  take  the  goods  into  his  actual  custody 
and  possession,  and  the  other  partner  cannot  maintain  replevin  for 
them.     Davis  v.  White,  228. 

6.  An  execution  brnds  the  goods  of  the  defendant  from  the  time  it 
comes  to  the  hands  of  the  sheriff,  but  a  writ  of  foreign  attachment 
only  from  the  taking  of  them  by  the  officer;  an  actual  taking  into  his 
exclusive  possession,  however,  is  not  necessary;  the  making  of  an  in- 
ventory with  a  view  to  the  appraisement  of  the  goods  under  the  latter 
writ  will  constitute  a  taking  in  law,  and  being  then  in  the  legal  cus- 
tody and  possession  of  a  constable  so  inventorying  them  under  a  writ 
of  foreign  attachment,  it  will  have  preference  over  executions  after- 
wards coming  to  the  hands  of  the  sheriff  on  the  same  day.  Stockley 
v.   Wadman,  350. 

See  Partners,  3. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  An  executor  with  or  without  compensation  for  his  services  as 
such  provided  for  in  the  will,  is  not  a  competent  witness  to  support 
the  will.     Davis  et  al.  v.  Rogers,  44. 

2.  A  husband  is  not  liable  after  the  death  of  his  wife  for  debts 
contracted  by  her  before  their  marriage.  Neither  is  he  liable  as  her 
administrator  for  such  debts,  except  to  the  extent  of  the  choses  in 
action  due  her  at  her  death.  Day  and  Wife  v.  Messick's  Administra- 
tor, 328. 

3.  A  balance  due  upon  a  note  to  an  admioistrator,  as  administrator, 
given  for  goods,  sold  by  him  at  public  sale  as  the  property  of  his  in- 
testate, cannot  be  set  off  in  an  action,  at  the  suit  of  the  maker  of  the 
note,  against  the  administrator  for  a  sum  due  from  his  intestate  to  the 
maker  of  it.     Cannon's  Administrator  v.  Edwards,  427,  428. 

4.  In  an  action  on  an  executor's  bond,  the  party  for  whose  use  the 
suit  was  brought  for  a  legacy,  recovering  judgment,  was  ordered  to 
enter  into  bond  to  the  executor  to  refund,  to  meet  outstanding  debts, 
&c,  and  execution  stayed  till  the  order  should  be  complied  with. 
Burton  v.  Rodney  and  Wife,  443. 

5.  The  costs  of  the  executor  in  defending  the  validity  of  the  will 
allowed  him  out  of  the  estate,  although  the  will  was  set  aside. 
Browne,  Exemtor  of  Davis,  v.  Rogers,  458. 

0.  Pending  proceedings  in  review  on  an  issue  of  derisavit  vei  non  to 
set  aside  a  will  admitted  to  probate,  the  executor  named  in  it  was  re- 
moved and  an  administrator  pendente  lite  was  appointed,  who  filed  his 
petition  before  the  Chancellor  and  obtained  an  order  on  him  to  de- 


INDEX.  633 

EXECUTORS  AND  ADMINISTRATORS—  Continued. 

liver  all  theunadministered  effects  of  the  deceased,  &c,  on  which  the 
executor  proceeded  to  file  his  testamentary  account  before  the  Regis- 
ter, exhibiting  a  balance  against  him,  which  he  paid  over  to  the  ad- 
ministrator pendente  lite;  the  will  under  which  he  had  been  appointed 
executor  was  afterwards  set  aside  under  the  issue,  and  a  former  will 
of  the  testator  having  been  admitted  to  probate  and  letters  testamen- 
tary granted  thereon  to  another  as  executor,  the  latter  filed  exceptions 
to  the  account  so  passed  by  the  removed  executor  and  succeeded  in 
surcharging  it  to  a  larger  amount  against  him,  whereupon  he  insti- 
tuted an  action  on  the  bond  of  the  removed  executor  to  recover  the 
latter  amount  as  unadministered  money  in  the  hands  of  the  removed 
executor,  payable  to  him  as  the  succeeding  executor.  Held,  that  he 
was  entitled  as  such,  to  recover  it,  notwithstanding  the  remedy  re- 
sorted to  in  Chancery  by  the  administrator  pendente  lite,  and  that  the 
proceedings  referred  to,  did  not  preclude  it.  Also,  that  an  action  on 
the  bond  may  be  maintained  for  such  purpose  by  a  remote  as  well  as 
by  an  Immediate  successor  in  the  office,  on  the  removal  of  the  pre- 
ceding executor  or  administrator,  where  there  has  been  an  intervening 
administration  on  the  est 

7.  A  will  made  by  a  citizen  of  the  State,  in  the  State,  contained 
the  following  provision:  "If  at  any  time  my  executor  and  trustee 
herein  named  shall  find  it  necessary  to  relinquish  this  executorship 
and  trust,  and  the  management  of  the  estate  herein  intrusted  to  him, 
it  is  then  my  desire  that  the  Orphans'  Court  of  the  City  and  County 
of  Philadelphia  shall  name  a  suitable  person  as  an  executor  and  trustee 
in  his  place  ;  and  I  do  hereby  appoint  the  person  so  named  to  be  in 
that  event  my  executor  and  trustee."  The  executor  and  trustee  named 
in  the  will  renounced  and  refused  the  office  ;  upon  which  the  Orphans' 
Court  for  the  City  and  County  of  Philadelphia  named  another  citizen 
of  Philadelphia  as  a  suitable  person  as  an  executor  and  trustee  in  his 
place,  to  whom  letters  testamentary  were  afterwards  granted  as  the 
executor  of  the  will  by  the  Register  for  New  Castle  County.  Held, 
that  the  grant  of  letters  testamentary,  thus  made  to  him  as  executor 
of  the  will,  was  valid  and  legal,  and  that  it  was  not  necessary  and 
proper  that,  instead  of  letters  testamentary,  letters  of  administration 
cum  testamento  annexo  should  have  been  issued  to  him  by  the  Register. 
State,  use  of  Davis'  Executor,  v.  Rogers,  5(i9,  570. 
See  Demurrkr,  6. 

EXEMPLARY  DAMAGES.     See  Demise,  3. 

FALSE  IMPRISONMENT.     See  Justice  of  the  Peace,  1. 

FOREIGN  ATTACHMENT. 

1.  A  foreign  corporation  is  not  liable  to  a  foreign  attachment  under 
the  statute  in  regard  to  such  attachments.  A  corporation  cannot  put 
in  special  bail  to  the  action,  or  be  surrendered  to  bail  when  it  appears, 
if  its  appearance  could  be  compelled  in  this  mode  ;  and  the  Legislature 
having  made  no  provision  by  which  this  can  be  done,  the  remedy  of 

41 


634  INDEX. 

FOREIGN  ATTACHMENT— Continued. 

the  writ  does  not  apply  to  a  foreign  corporation.    Vogte  v.  New  Qranada 
Canal  Company,  294. 

2.  A  foreign  attachment  will  lie  against  a  non-resident,  notwith- 
standing he  was  temporarily  in  the  State  at  the  time  when  it  was 
issued.     Burcalow  v.  Trump,  363. 

See  Execution,  6. 
FOREIGN  CORPORATION.     See  Foreign  Attachment,  1. 
FRAUD. 

1.  It  is  no  defence  to  an  action  between  the  original  parties  on  a 
promissory  note  given  on  the  sale  of  goods,  that  the  goods  turned  out 
to  be  of  no  value,  without  proof  of  an  express  and  fraudulent  war- 
ranty of  them,  or  fraudulent  representations  as  to  their  value  by  the 
plaintiff  in  the  sale  of  them  to  the  defendant.     O'Neal  v.  Bacon,  215. 

2.  Neither  imbecility  of  mind,  nor  intoxication  at  the  time  of  the 
marriage,  accompanied  with  circumstances  of  fraud,  combination,  or 
circumvention  on  the  part  of  the  friends  of  the  wife  to  induce  the 
husband  to  marry  her,  will  give  the  Court  jurisdiction  to  divorce  the 
parties.     Elzey  v.  Elzey,  308. 

GRATUITOUS  SERVICES.     See  Near  Relations. 
HUSBAND  AND  WIFE. 

1.  A  husband  is  not  liable  after  the  death  of  his  wife  for  debts  con- 
tracted by  her  before  their  marriage.  Neither  is  he  liable  as  her 
administrator  for  such  debts,  except  to  the  extent  of  the  choses  in 
action  due  her  at  her  death.     Day  and  Wife  v.  Measick,  328. 

2.  A  widow's  interest  in  the  one-third  of  the  residue  of  her  hus- 
band's personal  estate,  who  dies  intestate,  is  a  vested  interest,  and 
her  right  attaches  immediately  on  his  death.  Pettyjohn's  Executor 
v.  Pettyjohn,  332. 

3.  Promissory  notes  made  to  a  married  woman,  and  not  reduced  to 
possession  by  the  husband,  on  his  death  survive  to  the  wife,  and  not 
to  his  executor,  if  she  is  then  living.  And  as  to  the  rights  of  the  wife 
by  survivorship  in  such  cases,  there  is  no  distinction  between  choses 
in  action  accruing  to  the  wife  before  marriage  and  during  her  cover- 
ture.     Leiuicrman  v.  Lenderma?i's  Executor,  523. 

See  Chanckry,  1.     Demise,  1. 
IMMORAL  CONSIDERATION.     See  Contract,  2. 
INJUNCTION.     See  Chanckky,  2. 
INTEREST.     See  "Wills,  Construction  of,  3.     "Witness,  2,  4,  5. 

JUDGMENTS. 

1.  It'  a  party,  after  suffering  judgment  by  default  in  an  action  of 
ejectment,  relinquishes  or  abandons  the  possession  of  the  premises,  no 
length  of  possession  prior  to  it  will  avail  him  in  a  second  action  of 
ejectment  against  him  for  the  same  premises,  although  the  plaintiff 
did  not  enter  into  possession  on  his  abandonment  of  them.  Doc  d. 
Bright  v.  Stephens,  31. 


INDEX.  C35 

J  U  DGM  E  N  TS— Continued. 

2.  A  general  warrant  of  attorney  to  confess  judgment  on  a  bond 
cannot  be  varied  or  restricted  by  a  parol  agreement  not  to  enter  it  in 
this  State ;  and  no  action  will  lie  on  such  agreement.  Logan  v.  The 
Farmers'  Bank,  35. 

3.  A  judgment  by  default,  in  a  former  action  of  ejectment  between 
the  same  parties,  legally  establishes  the  right  of  the  plaintiff  to  the 
possession  of  the  premises  in  a  second  action  between  them  for  the 
same  premises ;  but,  unless  it  is  followed  by  an  entry  into  possession, 
either  by  a  writ  of  possession  or  without  it,  but  with  the  consent  or 
by  the  surrender  or  abandonment  of  the  defendant,  such  judgment 
can  have  no  effect  on  the  defendant's  possession,  or  upon  the  question 
of  title  on  his  part,  founded  on  an  actual  and  uninterrupted  adverse 
possession  of  twenty  years'  continuance.  Doe  d.  Bright  v.  Stevens, 
240. 

4.  Judgment  by  default  for  want  of  appearance  and  an  inquisition 
held  thereon,  set  aside  after  the  lapse  of  two  terms,  for  want  of  a  suf- 
ficient return  to  the  summons  by  which  the  suit  was  commenced. 
But  leave  granted  to  amend  the  return  on  payment  of  costs  and 
allowing  the  defendants  to  enter  their  appearance  forthwith.  Wil- 
mington, use  of  Rupp,  v.  Kea?-ns  $  Pyle,  362. 

6.  A  joint  judgment  entered  against  the  individual  members  of  a 
late  firm,  on  a  bond  and  warrant  of  attorney  executed  for  them  by 
one  of  the  members,  but  without  their  proper  authority,  is  neither 
binding  on  them  nor  on  the  member  executing  the  bond  and  warrant 
of  attorney.     Hickman  <f  Co.  v.  Branson,  429. 

f>.  In  an  action  upon  a  judgment  recovered  in  another  State,  it  is 
final  and  conclusive,  not  only  a9  to  the  persons  who  were  parties  on 
the  record  to  it  there,  but  also  as  to  all  persons  who  should  have  been 
parties  to  it  there. 

7.  A  bond  given  by  two  members  of  a  firm  for  debt  and  judgment 
confessed  upon  it  by  them  will  discharge  the  original  joint  liability  of 
a  third  partner  for  it,  because  it  changes  and  extinguishes  the  original 
nature  of  the  debt,  and  thereby  becomes  a  new  debt  of  a  higher  grade 
of  the  partners  giving  the  bond  and  confessing  the  judgment;  and 
if  the  other  partner  afterwards  pays  the  amount  of  the  judgment  to 
the  plaintiffs,  and  takes  an  indorsement  of  it  to  his  own  use  and 
benefit,  it  cannot  be  pleaded  as  a  payment  or  defence  to  an  action  on 
the  judgment  for  the  u.-e  of  such  partner  against  the  defendants. 

8.  A  person  for  whose  use  a  judgment  or  suit  is  indorsed  is  no  party 
to  it  in  a  legal  sense,  and  no  plea  addressed  to  his  right  merely  to 
maintain  the  action  is  good. 

9.  The  payment  of  a  judgment  by  a  person  not  a  party  to  it  is  not 
a  satisfaction  or  extinguishment  of  the  judgment,  unless  it  was  so 
intended  to  be  by  the  person  paying  it;  and,  if  indorsed  for  his  use, 
it  cannot  be  pleaded  as  a  payment  by  the  defendant  in  an  action  upon 
the  judgment  against  him.     Suydam  .j-  Reed  v.  Cannon,  431. 


636  INDEX. 

JUDGMENTS— Continued. 

10.  No  rule  can  be  laid  to  show  cause  wherefore  a  judgment  should 
not  be  satisfied,  or  issue  granted  to  ascertain  the  amount  due  upon  it, 
except  between  the  parties  to  the  judgment.  Buddy.  The  Union  Bank, 
456. 

11.  Judgments  confessed  upon  a  bond  and  warrant  of  attorney 
executed  by  one  member  of  a  firm  in  the  name  of  the  firm,  first, 
against  the  two  members  of  the  firm  jointly,  and  afterwards  severally 
against  the  member  of  the  firm  alone  who  executed  the  bond  and 
warrant,  vacated  and  set  aside ;  the  first  judgment,  because  the  war- 
rant only  authorized  the  entry  of  a  joint  judgment  against  the  part- 
ners, and  not  binding  both,  it  could  not  bind  either;  and  as  to  the 
second  judgment,  because  it  was  not  entered  pursuant  to  the  warrant, 
which  must  be  executed  strictly.  A  joint  and  several  bond  entered 
jointly  against  two  cannot  afterwards  be  entered  severally  against 
either.     Seal  v.  Seal,  516. 

JUSTICE  OF  THE  PEACE. 

1.  In  an  action  of  trespass  for  false  imprisonment  against  a  justice 
of  the  peace,  or  other  judicial  officer,  evidence  that  it  was  without 
probable  cause,  and  from  malicious  motives  against  the  plaintiff,  is 
irrelevant  and  inadmissible;  because  it  is  immaterial  in  such  action, 
provided  he  did  not  exceed  his  jurisdiction.  What  constitutes  probable 
cause,  when  supported  by  oath  or  affirmation,  is  a  question  for  the 
decision  of  the  magistrate ;  and,  however  erroneously  or  maliciously 
he  may  act  in  determining  it,  he  cannot  be  liable  for  it  in  this  form 
of  action. 

2.  The  very  question  presented  to  the  justice  upon  a  complaint 
made  on  oath  or  affirmation  as  the  constitution  requires,  whether 
there  is  probable  cause  for  believing,  from  the  nature  of  the  com- 
plaint, that  a  criminal  offence  has  been  committed  by  the  party  com- 
plained against,  gives  the  justice  jurisdiction,  and  constitutes  the 
preliminary  inquiry  lying  at  the  very  threshold  of  his  jurisdiction, 
which  he  must  consider,  and  which  no  one  but  he  can  decide  ;  .and 
whatever  may  be  his  decision  upon  it,  it  is  a  decision  clearly  within 
his  jurisdiction,  and  whether  right  or  wrong,  he  is  not  liable  in  a 
civil  action  to  any  one  for  it.  As  a  principle  of  law,  it  is  clearly 
established,  that  where  the  committing  magistrate  has  not  exceeded 
his  jurisdiction,  he  cannot  be  liable  in  any  civil  action,  however 
erroneous  may  have  been  his  decision,  or  even  malicious  may  have 
been  his  motives.     Bailey  v.  Wiggins,  299,  300. 

LANDLORD  AND  TENANT.     See  Demise. 

LEGACY.     See  Wills,  Construction  of,  3,  6,  7. 

LIMITATIONS  OF  ACTIONS. 

1.  The  general  statute  of  1843,  Revised  Code,  3,  4,  which  provides 
that  twenty  years'  peaceable  and  uninterrupted  possession  of  all  vacant 
lands,  with  the  exception  of  salt  marshes,  belonging  to  the  State,  shall 


INDEX.  637 

LIMITATIONS  OF  ACTIONS—  Continued. 

bar  any  claim  of  title  on  the  part  of  the  State  thereto,  is  not  merely 
retroactive,  but  is  prospective,  also,  in  its  operation  and  effect. 
Records  v.  Nelson,  139. 

2.  Nothing  short  of  a  direct  acknowledgment,  or  a  distinct  admis- 
sion of  the  existence  of  the  debt  as  a  subsisting  demand,  is  sufficient 
to  take  it  out  of  the  operation  of  the  statute  of  limitations. 

8.  A  qualified  and  conditional  acknowledgment  of  a  debt  barred 
by  the  statute  will  not  revive  it,  unless  the  condition  is  performed. 
Burton,  Indorsee,  v.  Robinson,  260. 

4.  The  acknowledgment  of  a  debt  as  a  subsisting  demand  will  take 
a  case  out  of  the  operation  of  the  statute  of  limitations,  without  an 
express  promise  to  pay  it.  Yet  the  principle  seems  to  require  that 
the  acknowledgment  should  be  of  a  subsisting  debt,  and  recognizing 
an  obligation  to  pay  it,  as  a  debt  originally  just  and  still  due.  And, 
to  properly  value  the  force  of  such  admissions,  the  circumstances 
under  which  they  are  made  may  be  considered. 

6.  But  where  the  acknowledgment  or  recognition  of  the  debt  relied 
on,  was  an  agreement  between  the  parties  in  writing,  made  at  the 
time  of  entering  into  the  trial,  of  an  amicable  action  between  the 
plaintiff  in  a  different  character,  as  an  administrator,  and  the  defen- 
dant, "  that  a  certain  note,  bearing  date,  &c,  from  the  defendant  to 
another  person,  and  by  him  indorsed  to  the  plaintiff  in  the  amicable 
action  in  his  own  right,  or  any  payments  or  credits  applicable  thereto, 
should  not  be  considered  by  the  arbitrators,"  it  is  not  sufficient  for 
the  Court,  in  charging  the  jury,  to  leave  it  to  them  simply  to  deter- 
mine whether  the  agreement  merely  referred  to  the  note  on  which 
the  action  was  brought,  but  it  should  also  have  left  it  to  the  jury  to 
say  whether  the  agreement  recognized  that  note,  or  any  part  of  it,  as 
yet  due.     Robinson  v.  Burton,  540. 

See  Deed,  6,  7,  8. 
MANDAMUS. 

1.  Mandamus  will  not  lie  to  admit  or  restore  a  minister  who  is 
wrongfully  excluded  from  his  pulpit  and  the  exercise  of  his  spiritual 
functions  by  the  corporate  trustees  and  congregation  of  the  Church,  if 
there  is  no  endowment  or  emolument  other  than  voluntary  contri- 
butions annexed  to  the  office,  and  dependent  on  the  exercise  of  its 
functions,  or  he  lias  no  temporal  right  involved  in  the  mutter  and 
affected  by  the  exclusion. 

2.  Without  some  temporal  right,  such  as  an  endowment,  a  fixed 
emolument,  stipend  or  salary,  or  other  temporal  advantage  annexed 
to  its  functions,  his  office  is  merely  a  spiritual  or  ecclesiastical  office; 
and  if  wrongfully  excluded  from  it  there  is  no  legal  right  involved 
in  the  case,  and  a  court  of  law  has  no  jurisdiction  of  it.  If,  however, 
there  is  any  such  temporal  right  attached  to  the  office  and  its  func- 
tions affected  by  his  exclusion,  and  for  which  the  law  affords  no 
specific  remedy,  mandamus  will  lie  t<>  restore  him,  to  prevent  a  failure 
of  justice  in  respect  to  such  legal  right.    i';iib?»  Church  v.  Sanders.  100. 


638  INDEX. 

MARRIAGE.     See  Witness,  5. 

MARRIED  WOMAN.     See  Husband  and  Wific. 

MILL  PROPERTY. 

The  words,  "  together  with  all  and  singular  the  mill,  mill-dam, 
races,  water-courses,  and  other  the  appurtenances,"  contained  in  a  deed 
for  mill  property,  will  not  convey  the  bed  of  the  mill-pond,  or  the 
land  covered  with  the  water  of  it.     Bartholomew  v.  Edwards,  17. 

MORTGAGE. 

1.  A  mortgage  executed  and  acknowledged  in  1808,  and  recorded, 
but  without  any  entry  as  to  the  time  when  it  was  recorded,  held  to 
have  been  recorded  within  a  year  after  its  execution,  as  it  appeared 
from  the  record  to  have  been  recorded  at  an  early  day,  and  the  law 
then  required  no  such  entry  to  be  made. 

2.  As  between  the  mortgagor  and  mortgagee,  a  mortgage  is  only 
a  security  for  the  payment  of  the  debt,  and  does  not  absolutely  con- 
vey the  legal  title  in  the  premises  to  the  mortgagee,  so  long  as  the 
mortgagor  continues  in  possession  of  thern  ;  but  it  is  a  lien  of  so  high 
a  naturo  that  it  is  not  divested  by  a  sale  of  the  premises  on  a  judg- 
ment subsequently  obtained ;  yet  if  the  mortgagee  is  in  possession 
after  condition  broken,  it  is  no  longer  in  the  power  of  the  mortgagor, 
or  any  one  claiming  title  under  him  by  virtue  of  a  sale  on  such  a 
judgment,  to  recover  the  possession  in  ejectment.  The  only  right 
which  the  purchaser  acquires  in  such  a  case  is  to  redeem  the  premises 
by  paying  the  mortgage.  Because  the  mortgagee  in  that  case  is  the 
bolder  of  the  legal  title  ;  but,  if  the  mortgagor  is  in  possession,  the 
sale  on  the  judgment  will  convey  the  legal  title  to  the  purchaser 
subject  to  the  mortgage. 

3.  If  the  mortgagor  and  mortgagees  be  living  together  in  possession 
of  the  premises  after  conditions  broken,  it  is  not  a  case  of  mixed  pos- 
session, as  between  tenants  in  common,  in  which  the  law  will  adjudge 
the  possession  to  the  mortgagees,  as  the  holders  of  the  legal  title.  In 
such  a  case  the  possession  must  be  in  one  or  the  other,  and  there  can 
be  no  mixture  of  possession  between  them  in  their  relation  as  mort- 
gagor and  mortgagees  which  would  divest  the  mortgagor's  actual 
possession  of  the  property.  Doe  d.  Hall  and  Wife  et  al.  v.  Tunnell, 
320,  321. 

NEAR  RELATIONS. 

1.  An  action  of  indebitatus  assumpsit  will  lie  as  between  near  rela- 
tions for  board  and  maintenance,  on  proof  of  an  express  promise,  or 
an  actual  understanding  between  the  parties  that  the  same  is  to  be 
charged  and  paid  for,  without  a  special  count  on  the  express  promise. 
Cannon  v.  Windsor,  143. 

2.  Although  a  son  cannot  recover  in  an  action  of  assumpsit  against 
the  executor  of  his  father,  on  the  special  counts  upon  an  express  con- 
tract between  them,  that  it'  the  son  would  remain  with  his  father  after 
he  attained  his   majority,  and  work  for  him  as   long  as  he   lived,  the 


INDEX.  639 

NEAR  RELATIONS— Continued. 

latter  would  leave  him  in  his  will  one-half  of  his  land  when  he  died, 
unless  the  contract  is  in  writing,  yet  he  may  recover  on  the  common 
counts  for  the  value  of  the  work  and  labor  performed  by  him  under 
the  agreement,  provided  an  actual  or  express  promise  is  proved  on 
the  part  of  the  father  to  pay  or  compensate  him  for  his  service.  But 
on  the  common  counts  for  work  and  labor  he  can  only  recover  the 
actual  value  of  his  services  as  proved,  and  not  the  value  of  the  land 
which  the  father  agreed  but  failed  to  devise  to  him,  the  former  and 
not  the  latter  being  the  true  measure  of  the  damages  in  such  re- 
covery.    Watson  v.  Watson,  209. 

NEGLIGENCE.     See  Principal  and  Agent,  1.     Railroad  Com- 
panies, 5,  8,  9. 

PARTITION.     See  Chancery,  1. 

PARTNERS. 

1.  In  an  action  of  replevin  to  recover  goods  taken  in  an  execution 
on  &Ji./a.  issued  against  two  parties,  lately  trading  together  as  part- 
ners, and  levied  on  the  goods  of  a  third  person  as  a  partner  with  one 
of  the  defendants  in  the  execution,  the  other  defendant  is  not  a  com- 
petent witness  to  prove  the  interest  and  partnership  of  his  co-defendant 
in  the  goods. 

2.  What  constitutes  a  partnership  ? 

3.  On  an  execution  against  a  single  partner  it  is  the  right  and  duty 
of  the  sheriff  to  seize  in  execution  the  whole  of  the  partnership  goods, 
and  to  sell  the  undivided  share  and  interest  of  the  partner  in  the 
goods ;  and,  if  he  deems  it  advisable,  to  prevent  their  being  wasted 
or  carried  away,  he  has  a  right  to  take  the  goods  into  his  actual  cus- 
tody and  possession,  and  the  other  partner  cannot  maintain  &replevin 
for  them.     Davis  v.  White.  228. 

PAYMENT. 

A  partial  payment  made  within  twenty  years  on  a  judgment  of 
longer  standing  will  rebut  the  legal  presumption  of  its  payment ;  but 
if  the  parties  have  subsequent  dealings  within  that  time,  and  the 
plaintiff  falls  in  debt  to  the  defendant  on  book  account,  he  cannot 
indorse  the  amount  on  the  record  as  a  credit  to  the  judgment,  so  as 
to  rebut  the  presumption  of  its  payment;  unless  it  be  further  shown 
that  they  have  had  a  settlement  of  their  subsequent  dealings,  and  it 
was  so  agreed  between  them.      Vaughayi  v.  Marshall,  604. 

See  J  uduments,  It. 

PLEADING. 

1.  The  maxim  of  civiliter  mortuus,  on  a  conviction  for  felony,  does 
not  apply  in  this  State.  Even  in  England,  the  disability  to  maintain 
a  civil  action,  after  a  conviction  fur  treason  or  felony,  attaches  only 
to  a  party  plaintiff,  and  must  either  he  pleaded  in  abatement  or  spe- 
cially in  bar  to  the  action;    but   any  subject  of  the   king  there,  con- 


640  INDEX. 

PLEADING— Continued. 

victed  or  attainted  of  treason  or  felony,  may  be  sued  as  a  party 
defendant  in  a  civil  action.     Cannon  v.  Windsor,  143. 

2.  An  action  of  indebitatus  assumpsit  will  lie  as  between  near  rela- 
tions, for  board  and  maintenance,  on  proof  of  an  express  promise,  or 
an  actual  understanding  between  the  parties  that  the  same  is  to  be 
charged  and  paid  for,  without  a  special  count  on  the  express  promise. 
Ibid.,  143. 

3.  Although  a  son  cannot  recover  in  an  action  of  assumpsit  against 
the  executor  of  his  father,  on  the  special  counts  upon  an  express  con- 
tract between  them,  that  if  the  son  would  remain  with  his  father  after 
he  attained  his  majority,  and  work  for  him  as  long  as  he  lived,  the 
latter  would  leave  him  in  his  will  one-half  of  his  land  when  he  died, 
unless  the  contract  is  in  writing,  yet  he  may  recover  on  the  common 
counts  for  the  value  of  the  work  and  labor  performed  by  him  under 
the  agreement,  provided  an  actual  and  express  promise  is  proved  on 
the  part  of  the  father  to  compensate  him  for  his  services.  But  on  the 
common  counts  for  work  and  labor  he  can  only  recover  the  actual 
value  of  his  services  proved,  and  not  the  value  of  the  land  which  the 
father  agreed  but  failed  to  devise  to  him,  the  former  and  not  the 
latter  being  the  true  measure  of  the  damages  in  such  recovery.  Wat- 
son v.  Watson,  209. 

4.  When  a  sheriff  justifies  taking  goods  under  a  fi.  fa.  he  is  not 
bound  to  set  out  the  judgment  in  his  plea,  or  to  plead  anything  more 
than  the  execution  under  which  he  seized  them.    Davis  v.  White,  228. 

5.  In  such  an  action,  if  the  goods  have  been  replevied,  the  sheriff  is 
entitled  to  a  verdict  for  the  return  of  the  goods,  and  if  a  return  can- 
not be  hud,  to  a  verdict  for  damages  to  the  value  of  the  partner's 
•share  or  interest  in  them.     Ibid.,  229. 

6.  In  pleading  upon  statutes,  the  general  rule  is,  that  where  the 
exception  occurs  in  the  enacting  clause,  or  in  the  same  or  a  preceding 
section,  or  in  a  preceding  statute,  the  plaintiff  must  negative  the 
exception  ;  but,  where  the  exemption  occurs  in  a  subsequent  section 
or  statute,  it  is  a  matter  of  defence  to  come  from  tin;  other  side. 
Socum  v.  The  State,  204. 

7.  If  the  declaration  in  appeal  from  a  justice  of  the  peace  fails  to 
correspond  with  the  transcript  of  the  suit  below,  in  the  names  and 
number  of  the  parties,  the  character  or  right  in  which  they  sue,  or 
in  the  cause  or  form  of  action,  the  proper  mode  to  take  advantage  of 
it  is  by  motion  to  set  it  aside  for  irregularity,  and  not  by  plea  in 
abatement,  on  the  ground  of  variance  between  the  narr  and  the 
transcript.     McDowell  v.  Simpson  and  Wife,  4»>7. 

See  Demurrer.     Case  and  Trespass. 
POSSESSION. 

1.  Exclusive  possession  is  sufficient  to  maintain  trespass  q.  c.  f. 
against  one  entering  without  license,  or  a  legal  title. 

2.  In  a  case  of  common  possession  by  two  or  more  persons,  the  law 
adjudges  the  rightful  possession  to  him  who  has  the  legal  title;   and 


INDEX.  641 

POSSESSION— Continued. 

no  length  of  holding  in  such  case  can  give  title  by  possession  against 
such  legal  title. 

3.  "What  kind  of  possession  will  give  title  to  real  estate  depends  on 
the  nature  and  condition  of  the  property  itself.  An  actual  inclosure 
is  the  most  obvious  proof  of  possession,  but  it  is  not  indispensably 
necessary  for  such  purpose:  cutting  wood,  or  grass,  or  even  the  pas- 
turing of  cattle  repeatedly,  and  as  a  matter  of  exclusive  right,  upon 
uninclosed  land,  is  evidence  of  possession  ;  and  if  exclusive  and  ad- 
verse in  their  character  to  the  rights  of  all  others,  and  continuous  for 
twenty  years,  will  confer  an  absolute  title  by  possession  merely. 

4.  No  act,  however,  which  does  not  amount  in  itself  to  an  assertion 
of  right  to  the  soil,  can  be  evidence  of  possession  of  the  soil.  Thus 
the  use  of  water  for  a  mill,  or  any  other  privilege  connected  with  the 
use  of  the  water  simply,  is  not  of  itself  alone  evidence  of  title  to  the 
land  covered  with  it ;  because  the  right  to  use  the  water  for  such  pur- 
poses may  well  be  in  one,  while  the  title  and  possession  of  the  land 
covered  with  the  water,  subject  to  that  easement  or  privilege,  may 
remain  in  another  person.     Bartholomew  v.  Edwards,  17. 

5.  Possession  is  not  necessary  to  enable  a  party  to  convey  by  deed 
a  title  to  land  in  this  State. 

6.  No  inclosure  necessary  to  constitute  a  holding  by  adverse  pos- 
session. 

7.  If  a  party,  after  suffering  judgment  by  default  in  an  action  of 
ejectment,  relinquishes  or  abandons  the  possession  of  the  premises,  no 
length  of  possession  prior  to  it  will  avail  him  in  a  second  action  of 
ejectment  against  him  for  the  same  premises,  although  the  plaintiff 
did  not  enter  into  possession  on  his  abandonment  of  it.  Bright  v. 
Stephens,  31. 

8.  An  action  of  ejectment  cannot  be  maintained  on  possession  alone 
short  of  twenty  years  against  a  mere  trespasser,  who  enters  without 
any  color  of  title  and  ousts  the  party  in  possession.  Doe  d.  Jefferson 
v.  Howell,  178. 

See  Case  and  Trespass,  2,  3.     Ejectment,  4.     Mortgage,  2,  3. 
POWERS. 

The  intention  to  execute  a  delegated   power  must  appear  in  the 

execution  of  it,  either  by  a  reference  to  the  power  itself,  or  to  the 

subject-matter  of  it,  in  a  way  to   leave  no  doubt  of  the  intention  to 

execute  the  power.     Doc  d.  Davis  v.  Vincent,  416. 
PRACTICE. 

1.  The  propounder  of  a  will  on  an  issue  of  derisavit  re!  nun  is  to 
prove  the  factum  or  formal  execution  of  it,  and  then  the  reviewers 
having  the  burden  of  invalidating  it  have  the  opening  and  conclusion 
of  the  argument.      Darts  et  al.  v.  Rogers,  44. 

2.  On  the  trial  of  a  caveat  tiled  against  proceedings  to  locate  vacant 
land,  under  a  private  act  of  Assembly,  the  defendant  is  entitled  to 
the  opening  and  conclusion  to  tUe  jury.     Records  v.  Melson,  139. 


642  INDEX. 

PRACTICE— Continued. 

8.  The  report  of  referees  on  a  rule  of  reference  sustained  by  the 
Court,  on  the  party  consenting  in  whose  favor  the  report  was  made, 
to  enter  a  credit  upon  it  for  a  payment  proved  to  have  been  made  by 
the  other  party,  but  which  the  referees  had  disallowed.  Burton's 
Executor  v.  Warrington,  148. 

4.  The  Court  will  not  compel  the  production  of  a  promissory  note 
by  a  plaintiff  before  trial  for  the  inspection  of  the  defendant,  although 
he  is  an  administrator,  on  an  affidavit  submitted  by  him,  alleging 
grounds  to  suspect  its  genuineness,  and  that  the  plaintiff  had  refused 
to  allow  the  defendant  to  see  it.  Frank  v.  Frank's  Administrator, 
246. 

6.  The  existence,  identity,  and  loss  of  a  deed,  are  questions  ad- 
dressed to  the  Court,  and  are  first  to  be  decided  by  it,  and  afterwards 
the  evidence  of  its  contents  goes  to  the  jury  ;  and  if  the  evidence  is 
irregularly  introduced  on  these  points,  and  is  left  in  terms  of  too 
general  import  in  the  charge  by  the  Court  to  the  jury,  the  Court  will 
on  motion  set  aside  the  verdict  and  grant  a  new  trial.  Bartholomew 
v.  Edwards,  247. 

6.  No  writ  of  capias  ad  satisfaciendum  can  issue  on  a  joint  judgment 
against  several  defendants,  two  of  whom  were  free  white  citizens  of 
the  State,  notwithstanding  the  other  defendant  in  the  judgment  was 
a  non-resident,  and  the  other  two  were  not  arrested  under  the  writ 
and  took  no  exceptions  to  it,  without  an  affidavit  of  fraud  filed.  From- 
berger  v.  Karsner,  290. 

7.  Judgment  by  default  for  want  of  appearance,  and  an  inquisition 
held  thereon,  set  aside  after  the  lapse  of  two  terms,  for  want  of  a  suf- 
ficient return  to  the  summons  by  which  the  suit  was  commenced. 
But  leave  granted  to  amend  the  return  on  payment  of  costs  and 
allowing  the  defendants  to  enter  their  appearance  forthwith.  Wil- 
mington, use  of  Rupp,  v.  Kearn  $■  Pyle,  362. 

8.  After  a  general  leave  granted  to  amend  the  pleadings  without 
qualification,  the  Court  will  not,  on  motion,  strike  out  a  plea  of  the 
statute  of  limitations  entered  under  the  leave.  But  if  objected  to  at 
the  time  of  the  application  to  amend,  after  issue  joined,  the  Court 
will  not  permit  it  to  be  entered. 

9.  In  an  action  on  an  executor's  bond,  the  party  for  whose  use  the 
suit  was  brought  for  a  legacy,  recovering  judgment,  was  ordered  to 
enter  into  bond  to  the  executor  to  refimd,  to  meet  outstanding  debts, 
&c,  and  execution  stayed  till  the  order  should  bo  complied  with. 
Burton  v.  Rodney  et  al.,  442,  443. 

See  Amendment.     Judgment,  5,  11. 

PRESUMPTION. 

1.  If  a  person  leave  or  disappear,  the  presumption  in  favor  of  life 
continues  until  a  period  of  seven  years  has  elapsed  without  any  tidings 
or  intelligence  of  him  ;   but  after  that  the  rule  is  reversed,  and  the- 


INDEX.  643 

PRESUMPTION— Continued. 

law  presumes  his  death,  unless  the  contrary  be  shown.     Crawford  v. 
Elliott,  465. 

2.  A  partial  payment  made  within  twenty  years  on  a  judgment  of 
longer  standing  will  rebut  the  legal  presumption  of  its  payment; 
but  if  the  parties  have  subsequent  dealings  within  that  time,  and  the 
plaintiff  falls  in  debt  to  the  defendant  on  book  account,  he  cannot 
indorse  the  amount  on  the  record  as  a  credit  to  the  judgment,  so  as 
to  rebut  the  presumption  of  its  payment,  unless  it  be  further  shown 
that  they  have  had  a  settlement  of  their  subsequent  dealings,  and  it 
was  so  agreed  between  them.     Vaughan  v.  Marshall,  604. 

3.  If,  however,  the  grantor  in  the  deed,  after  the  date,  execution 
and  delivery  of  it,  gives  tho  grantee  his  judgment-note  for  a  sum  of 
money,  it  will  create  a  presumption  that  the  consideration-money  for 
the  deed  was  paid  at  or  prior  to  the  date  of  the  note,  as  it  would  im- 
ply a  settlement  between  the  parties  at  that  time,  and  that  all  claims 
and  demands  between  them  of  inferior  grade  and  dignity  were  in- 
cluded in  it,  and  were  extinguished  by  the  security  of  a  higher  nature. 
It  raises,  however,  at  best  but  a  presumption  ;  and,  as  all  presump- 
tions of  this  character  may  be  rebutted,  it  is  not  necessarily  conclusive. 
Callaway  v.  Hearn,  607. 

PRETENSIONS. 

Ten  days'  notice  of  the  time  of  laying  down  pretensions,  including 

the  day  of  serving  the  notice  and  the  day  of  making  the  survey,  is 

sufficient.     Cann  v.  Warren,  189. 
PRINCIPAL  AND  AGENT. 

1.  If  a  principal  contracts  with  his  agent  to  do  an  illegal  act  for 
him,  and  by  reason  of  the  latter's  negligence  in  the  mode  of  perform- 
ing it  another  is  damaged,  for  which  the  principal  is  sued  and  a  judg- 
ment is  recovered  against  him,  he  cannot  maintain  an  action  against 
the  agent  for  the  amount  of  it.  But  if  the  agent  agreed,  before  pro- 
ceeding to  do  the  work,  to  procure  the  proper  license  and  authority 
for  it,  but  proceeded  without  it,  he  will  be  liable  to  the  principal  in 
such  action,  unless  the  principal  afterwards  agreed  that  he  should  do 
the  work  without  the  license.  In  the  action  by  the  principal  against 
the' agent  for  such  negligence,  the  judgment  recovered  against  him  is 
evidence  of  the  quantum  of  damage  sustained  by  him,  but  not  of  the 
fact  on  which  the  judgment  is  founded;  that  is  to  say,  that  the 
damage  was  occasioned  by  the  negligence  or  misconduct  of  the  agent, 
for  that  must  be  proved  by  evidence  aliunde.  Baynard  ,j-  Postlcs  v. 
Harrity,  200. 

2.  If  a  principal  in  the  sale  of  goods  directs  his  agent  not  to  deliver 
them  until  they  have  been  paid  for,  and  the  agent,  without  his  know- 
ledge and  authority,  delivers  them  to  the  buyer  on  trial,  to  be  paid 
for,  or  returned  by  a  certain  day,  and  it  is  not  done,  there  is  no 
change  of  property  in  the  goods  by  such  delivery  of  them,  and  the 
seller  may  retake  them,  notwithstanding   he  may  have  afterwards 


644  INDEX. 

PRINCIPAL  AND  AGENT— Continued. 

acquiesced  in  the  delivery  of  the  agent  and  declared  in  the  mean 
time  that  he  had  sold  them  to  the  buyer.     Jefferson  v.  Chaae,  219. 

PROMISSORY  NOTES. 

1.  The  holder  of  a  negotiable  note  may  maintain  an  action  against 
the  maker  of  it,  without  showing  how  he  obtained  it,  unless  he  is 
notified  previous  to  the  trial  that  the  payment  of  it  will  be  resisted 
for  good  and  sufficient  reasons  in  law.     Fairthomc  v.  Garden,  197. 

2.  It  is  no  defence  to  an  action  between  the  original  parties  on  a 
promissory  note  given  on>  a  sale  of  goods,  that  the  goods  turned  out 
to  be  of  no  value,  by  reason  of  which  the  consideration  wholly  failed, 
without  proof  of  an  express  and  fraudulent  warranty  of  the  goods,  or 
fraudulent  representations  as  to  their  value  by  the  plaintiff,  in  the 
sale  of  them  to  the  defendant. 

3.  What  will  constitute  an  express  warranty  ?  O'Neal  v.  Ba- 
con, 215. 

4.  The  Court  will  not  compel  the  production  of  a  promissory  note 
by  a  plaintiff  before  trial  for  the  inspection  of  the  defendant,  although 
he  is  an  administrator,  on  an  affidavit  submitted  by  him,  alleging 
grounds  to  suspect  its  genuineness,  and  that  the  plaintiff  had  refused 
to  allow  the  defendant  to  see  it.  Frank  v.  Frank's  Administrator, 
245. 

5.  Promissory  notes  made  to  a  married  woman  and  not  reduced  to 
possession  by  the  husband,  on  his  death  survive  to  the  wife,  and  not 
to  his  executor,  if  she  is  then  living.  And  as  to  the  rights  of  the 
wife  by  survivorship,  in  such  cases,  there  is  no  distinction  between 
choses  in  action  accruing  to  the  wife  before  marriage  and  during  her 
coverture.     Lenderman  v.  Le?ulerman's  Executor,  523. 

PROPERTY. 

Right  to  pursue  and  recapture  when  wrongfully  taken. 
See  Trespass. 
RAILROAD  COMPANIES. 

1.  The  grant  of  an  act  of  incorporation  by  the  State  is  professedly 
for  the  public  good  generally,  and  there  is  an  inherent  right  in  the 
Legislature  to  amend,  alter,  and  change  it  with  the  assent  of  the  cor- 
poration, and  those  who  become  corporators  in  it  do  so  with  that 
contingency,  and  their  engagements  are  therefore  subject  to  it. 

2.  If  a  subscriber  to  stock  enters  generally  into  a  corporation,  with- 
out specific  stipulations,  he  is  bound  and  concluded  by  the  action  of  a 
majority  of  the  corporation,  and  if  the  Legislature  amends  and 
changes  the  charter  with  the  assent  of  the  company,  he  will  not  be 
thereby  discharged  from  his  liability  for  his  subscription  for  stock 
made  previous  to  the  amendment  and  change  of  the  charter.  But  if 
the  subscription  for  stock  is  of  such  a  character,  and  the  change  in 
the  object  of  the  charter  is  of  such  a  nature  as  to  increase  the  amount 
which  he  was  originally  bound  to  pay  by  virtue  of  his  subscription  to 


INDEX.  645 

RAILROAD  COMPANIES— Continued. 

the  stock,  it  will  absolve  him  from  his  contract  and  liability  to  pay 
for  it. 

3.  There  is  no  substantial  distinction  between  the  terras  subscriber 
and  stockholder  in  the  Delaware  Railroad  charter,  and  a  subscriber 
may  be  sued  for  arrears  of  subscription  for  stock  due  from  him,  with- 
out proof  that  certificates  of  stock  have  been  issued  or  tendered  to  him 
by  the  company.     Delaware  Railroad  Company  v.  Tharp,  149,  150. 

4.  A  master  is  not  liable  to  his  servant  for  injuries  occasioned  by 
the  negligence  of  a  fellow  servant  in  the  course  of  their  common  em- 
ployment, provided  the  latter  is  a  person  of  competent  skill  and  care. 

6.  But  a  drover  travelling  in  a  freight  train  of  a  railroad  company 
with  live  stock,  for  the  purpose  of  taking  care  of  it  in  its  transporta- 
tion over  the  road  in  such  train,  although  it  was  the  usage  of  the 
company  in  such  cases  to  grant  to  the  owner  of  such  live  stock  a 
drover's  ticket  for  that  purpose,  free  of  charge  for  his  own  passage  in 
such  train,  on  his  releasing  the  company  from  all  liability  for  the 
Bafety  of  such  stock,  and  paying  the  freight  charged  for  the  trans- 
portation of  it,  which  by  the  custom  and  regulations  of  the  company 
was  twenty-five  per  cent,  higher  when  neither  the  owner  or  his  agent 
accompanied  it  on  the  train  for  that  purpose,  will  not  constitute  the 
relation  of  employer  and  employee,  or  of  master  and  servant,  for  the 
time  being,  between  the  company  and  such  drover  on  such  train.  On 
the  contrary,  and  notwithstanding  it  was  the  usage  and  regulation  of 
the  company  in  such  cases  to  issue  to  such  a  person  a  special  ticket, 
termed  a  drover's  ticket,  on  his  paying  the  rate  of  freight  charged  on 
the  stock  under  such  circumstances,  and  executing  a  release  to  the 
company  from  any  liability  for  the  safety  of  it,  which  contained  a 
printed  notice  on  the  back  of  it,  that  the  company  would  not  be  re- 
sponsible for  the  personal  safety  of  the  holder  of  it  in  travelling  over 
the  road  by  such  train,  and  which  expressly  restricted  his  right  of 
passage  under  it  to  the  freight  trains,  and  prohibited  his  travelling 
under  it  in  any  passenger  train  of  the  company,  it  was  held,  that  a 
drover  travelling  on  such  a  train  with  his  live  stock,  who  had  paid 
the  usual  freight  chargeable  upon  it  under  such  circumstances,  and 
released  the  company  as  required,  from  liability  for  the  safety  of  the 
transportation  of  it  over  the  road,  whether  he  had  or  had  not  such  a 
ticket  at  the  time,  was  rightfully  and  lawfully  a  passenger  on  such  a 
freight  train;  and  although  he  had  paid  no  fare  or  compensation  to 
the  company  for  his  own  passage  as  such,  and  was  not  in  a  passenger 
train,  but  a  freight  train,  in  which  the  company  never  carried  passen- 
gers, or  any  persons  other  than  drovers  or  their  agents  travelling 
with  their  live  stock  fur  the  purpose  of  taking  care  of  it,  and  then 
only  on  the  terms  and  conditions  before  stated  as  to  their  personal 
safety  and  security,  the  company,  nevertheless,  stood  in  the  relation 
of  a  common  carrier  of  passengers  for  hire  towards  him,  and  as  such 
were  liable  to  him  for  injuries  sustained  in  a  collision  between  such 


646  INDEX. 

RAILROAD  COMPANIES— Continued. 

freight  train  and  another  freight  train  of  the  company,  occasioned  by 
the  negligence  or  want  of  skill  on  the  part  of  the  servants  of  the  com- 
pany in  charge  of  either,  or  of  both  of  such  trains. 

6.  Common  carriers  consist  of  two  classes, — common  carriers  of 
goods,  and  common  carriers  of  persons  for  hire ;  and  railroad  com- 
panies being  incorporated  by  law  for  the  transportation  of  passengers 
as  well  as  property,  for  hire,  are  common  carriers  of  both  descrip- 
tions. 

7.  But  if,  as  a  general  thing,  they  confine  the  transportation  of 
goods  to  their  freight  trains,  and  the  conveyance  of  passengers  to 
their  regular  passenger  trains,  they  are  common  carriers  of  goods  as 
to  the  former,  and  of  passengers  as  to  the  latter;  nevertheless,  if  they 
are  in  the  habit  of  carrying  goods  for  hire  by  the  latter,  they  may 
become  common  carriers  of  goods  by  such  trains,  and  if  by  the  for- 
mer they  are  in  the  practice  of  carrying  passengers  for  hire,  such  as 
emigrants,  or  drovers,  or  any  other  class  of  traders  with  their  pro- 
perty, they  may  also  become  common  carriers  of  passengers  as  to 
such  persons  by  such  trains,  as  well  as  of  property,  and  may  thus  as- 
Bume  the  obligations  and  liabilities  of  common  carriers  indifferently 
both  of  persons  and  property  by  such  trains. 

8.  There  is  a  wide  distinction,  however,  between  the  liability  of 
common  carriers  of  goods  and  common  carriers  of  passengers  or  per- 
sons for  hire.  The  former  are  responsible  for  all  injuries  to  the  goods, 
except  such  as  are  caused  by  the  act  of  God,  or  the  public  enemigs, 
even  in  the  absence  of  negligence;  because  the  former  are  regarded 
in  law  in  the  light  of  insurers  of  the  goods  committed  to  their  charge, 
against  all  other  injuries;  whilst  a  common  carrier  of  passengers  is 
liable  for  injuries  to  the  latter  only  in  case  of  negligence.  But  the 
law  in  its  beneficence  will  not  allow  of  any  trifling  with  the  lives  or 
personal  safety  of  human  beings,  and  therefore  exacts  great  care, 
diligence,  and  skill,  from  those  to  whom,  as  common  carriers,  they 
commit  themselves;  common  carriers  of  passengers  are  responsible 
for  any  negligence  resulting  in  injury  to  them,  and  are  required,  in  the 
preparation,  conduct,  and  management  of  their  means  of  conveyance, 
to  exercise  every  degree  of  care,  diligence,  and  skill  which  a  reason- 
able man  would  use  under  such  circumstances.  This  obligation  is 
imposed  on  them  as  a  public  duty,  and  by  their  contract  to  carry 
safely  as  far  as  care  and  foresight  will  reasonably  admit.  A  railroad 
company,  using  as  it  does  the  powerful  and  dangerous  agency  of 
steam,  is  bound  to  provide  skilful  and  careful  servants,  competent  in 
every  respect  for  the  posts  they  are  appointed  to  fill,  and  is  responsi- 
ble not  only  for  their  possession  of  such  qualities,  but  for  their  con- 
tinued application  of  them  at  all  times. 

9.  If,  however,  the  injuries  complained  of  by  the  plaintiff  were 
occasioned  by  his  own  fault  or  negligence,  or  if  his  own  conduct  or 
imprudence  co-operated  with   the  negligence  or   misconduct  of  the 


INDEX.  647 

RAILROAD  COMPANIES—  Continued. 

servants  of  the  company  to  produce  them,  he  could  not  recover  for 
them  ;  because  he  could  not  hold  others  liable  for  the  consequences  of 
his  own  negligence  or  misconduct.  Flinn  v.  Philadelphia,  Wilming- 
ton, and  Baltimore  Railroad  Company,  469,  470,  471,  472. 

RECEIPT. 

1.  A  receipt  under  seal  is  conclusive,  and  cannot  be  contradicted 
by  parol  evidence.  State  use  of  Messick's  Administrator  v.  Mes- 
aick,  347. 

2.  The  usual  acknowledgment  of  the  receipt  or  payment  of  the 
consideration  or  purchase-money  contained  in  the  body  of  a  deed,  is 
prima  facie  but  not  conclusive  evidence 'of  the  payment  of  it,  and 
parol  evidence  is  admissible  in  this  State  to  show  that  it  has  not  been 
paid.      Callaway  v.  Hearn,  607. 

RECITAL.     See  Deed,  1,  2. 
RECOGNIZANCE. 

The  interest  or  share  of  an  heir-at-law  in  a  recognizance  in  the 
Orphans'  Court  is  liable  to  attachment.      Crawford  v.  Elliott,  465. 
See  Appeal,  3.  Estates  of  Intestates. 
RECORD. 

The  record  of  a  suit  between  the  same  parties  is  admissible  in  evi- 
dence in  a  subsequent  action  between  them,  although  it  may  not  be 
final  and  conclusive:  as  where  a  new  trial  has  been  asked  for  and  the 
rule  granted,  and  the  question  upon  it  is  still  pending.  Chase  v.  Jef- 
ferson, 257. 
RENT.     See  Demise,  1,  2.  Emblements. 

REPLEVIN. 

1.  The  remedy,  by  action  of  replevin,  pursuant  to  the  statute  Rev. 
Code,  379,  380,  does  not  extend  to  the  case  of  a  seizure  by  the  sheriff, 
under  execution,  of  goods  in  the  possession  of  a  third  person,  under  a 
contract  of  renting  or  hiring  them  of  the  plaintiff  at  a  certain  price 
per  year,  to  be  returned  on  reasonable  notice  in  good  order,  without 
notice  from  the  plaintiff  terminating  the  contract  and  requiring  the 
return  of  the  goods.     Stapleford  v.  White,  238. 

2.  When  the  plaintiff  in  an  action  of  replevin  relies  only  on  a 
wrongful  detention  of  the  property,  it  is  quite  as  necessary  in  general 
that  he  should  prove  a  demand  and  refusal  in  order  to  establish  the 
wrongful  detention,  as  it  is  to  establish  a  conversion  of  the  property 
in  an  action  of  trover.      Windsor  v.  Boyce,  606. 

RESIDUARY  BEQUEST.     See  Wills,  Construction  of,  6,  7. 

SALE. 

1.  If  a  person  buys  goods  and  pays  for  them,  but  allows  another  to 
take  them  and  sell  them,  retaining  the  entire  profits  over  and  above 
the  original  cost  of  them,  for  his  own  benefit,  they  are  the  property 
of  the  purchaser,  and  are  not  liable  to  execution  process  against  the 
party  receiving  and  selling  them.     Sharp  v.  Arthurs,  353. 


648  INDEX. 

8  A  LE— Continued. 

2.  A  sale  of  corn  in  the  ear  in  the  seller's  barn,  afterwards  to  be 
got  off  ready  for  market  by  him,  and  to  be  taken  away  by  the  pur- 
chaser as  soon  as  he  could  get  ready  to  receive  it,  transfers  the  pro- 
perty to  the  purchaser  from  the  time  of  the  sale,  and  it  cannot  be 
taken  on  an  execution  against  the  seller  levied  before  the  delivery. 
Cleaner  v.  Ogle,  468. 
See  Contracts,  8,  4,  6.  Principal  and  Aqknt,  2.  Trespass. 

SET-OFF. 

A  balance  due  upon  a  note  to  an  administrator,  as  administrator, 
given  for  goods  sold  by  him  at  public  sale  as  the  property  of  his  in- 
testate, cannot  be  set-off  in  an  action,  at  the  suit  of  the  maker  of  the 
note,  against  the  administrator,  for  a  debt  due  from  his  intestate  to 
the  maker  of  it.     Cannon's  Administrator  v.  Edwards,  427. 

SHEEP.     See  Dogs. 

SHIPPING.    See  Contracts,  3,  4,  5. 

STOCKHOLDER. 

There  is  no  substantial  distinction  in  the  Delaware  Railroad  Char- 
ter, between  the  terms  subscriber  and  stockholder,  as  indifferently 
employed  in  it.  .  There  is  nothing  in  it  to  warrant  the  refined  dis- 
tinction that  the  defendant  was  not  a  stockholder  in  the  company, 
because  there  was  no  proof  that  any  certificate  of  stock  was  ever  de- 
livered or  tendered  to  him  for  a  share  of  stock  subscribed  for  by  him. 
Delaware  Railroad  Company  v.  Tharp,  165. 

SURETY. 

In  an  action  on  a  recognizance  against  a  surety  in  an  appeal,  if  the 
same  be  referred  out  of  Court  under  a  rule  of  reference,  it  will  not 
release  the  surety  from  his  liability  on  the  recognizance;  and  it  is 
not  necessary  to  aver  in  the  narr  that  he  consented  to  the  reference. 
McColleys  use  of  Warren  v.  Hickman,  234. 

TESTAMENTARY  INTENTIONS.     See  Wills,  Probatk  of. 

TRESPASS. 

In  an  action  of  trespass  for  breaking  and  entering  the  close  of  the 
plaintiffs,  which  trespass  the  defendant  justifies,  because  the  plaintiff 
had  taken  his  goods  without  his  consent  and  locked  them  up  in  his 
close,  the  Court  will  not  entertain  the  question,  nor  inquire  in  which 
of  the  parties  the  rightful  property  in  the  goods  at  the  time  was 
vested,  when  the  claim  of  the  defendant  rests  on  an  alleged  contract 
of  purchase  of  the  goods  before  that  from  the  plaintiff,  and  it  would 
be  necessary  to  determine  whether  there  was  such  a  delivery  of  the 
goods  as  would  complete  the  sale  and  vest  the  legal  right  to  them  in 
the  defendant.  The  principle  of  law  in  regard  to  the  recapture  of 
goods  wrongfully  taken  from  the  possession  of  the  owner,  and  the 


INDEX.  649 

TRESPASS— Continued. 

right  of  the  owner  so  dispossessed,  to  speedily  follow  them  up  and  re- 
take them,  does  not  apply  in  such  a  case.     Chase  v.  Jefferson,  257. 

See  Possession,  1,  2,  3,  4.  Cask  and  Trespass.  Justice  of  the  Peace. 
Drovers,  1.  Trover. 

TROVER. 

1.  If  a  person  impounds  swine  damage-feasant,  and  kill  them  while 
so  in  his  possession,  or  injure  them,  so  that  they  afterwards  die  when 
set  at  large,  it  will  be  such  a  destruction  as  will  constitute  a  conver- 
sion in  law  of  the  property,  and  trover  will  lie  fur  it.  But  if  the  same 
is  done  while  the  swine  are  damage-feasant,  or  running  at  large,  and 
not  so  in  his  possession,  trespass,  and  not  trover,  is  the  proper 
remedy. 

2.  The  provision  of  the  statute  in  regard  to  case  and  trespass  has 
not  abolished  the  distinction  between  the  two  actions  in  such  a  case. 
Cannon  v.  Horsey,  440. 

TRUST. 

The  Legislature  has  no  power  to  authorize  or  direct  the  sale  and 
conversion  of  real  estate  into  personalty,  devised  by  a  testator  in  per- 
petuity and  trust  to  a  charity;  although  the  act  is  conceived  in  a 
friendly  spirit  towards  the  object  of  the  trust  and  with  a  design  to 
render  the  fund  more  productive  and  effectual  for  the  purposes  of  the 
charity  contemplated  by  the  testator.      Tharp  v.  Fleming,  580. 

TRUSTEE.     See  Witness,  2. 

VACANT  LAND. 

On  the  trial  of  a  caveat  filed  against  proceedings  to  locate  vacant 
land,  under  a  private  act  of  Assembly,  the  defendant  is  entitled  to 
the  opening  and  conclusion  to  the  jury. 

The  survey  and  plot  of  the  land  proposed  to  be  located,  returned 
into  the  Recorder's  office  under  the  provisions  of  the  act,  is  evidence 
on  the  trial  to  explain  the  limits  and  location  of  the  land  alleged  to 
be  vacant.  But  the  receipt  of  the  State  Treasurer,  for  the  caution- 
money  paid  him  by  the  defendant,  and  the  patent  of  the  State  for  the 
land  obtained  while  the  caveat  is  still  pending  and  undetermined,  are 
not  admissible  in  evidence. 

The  general  statute  of  1843,  9  vol.  Del.  Laws,  454,  and  Rev.  Code.  •"», 
4,  which  provides  that  twenty  years'  peaceable  and  uninterrupted 
possession  of  all  vacant  lands,  with  the  exception  of  salt  marshes,  be- 
longing to  the  State,  shall  bar  any  claim  of  title  on  the  part  of  the 
.State  thereto,  is  not  merely  retroactive  but  is  prospective  also  in  i t> 
operation  and  effect.     Records  v.  Nelson,  139. 

VESSEL.     See  Contracts,  4. 

WARRANT  OF  ATTORNEY. 

A  general  warrant  of  attorney  to  confess  judgment  on  a  borrd.  can- 
not be  varied  or  restricted   by  a  parol   agreement   not  to  enter  it  in 

42 


650  INDEX. 

WARRANT  OF  ATTORNEY— Continued. 

this  State,  and  no  action  will  lie  on  such  agreement.     Logan  v.  The 
Farmers'  Bank,  85. 

See  Bonds,  2.  Judgments,  2,  6,  7, 11. 
WARRANTY. 

What  will  constitute  an  express  warranty.     O'Neal  v.  Bacon,  215. 

WIDOW'S  THIRDS. 

A  widow's  interest  in  the  one-third  of  the  residue  of  her  husband's 
personal  estate,  who  dies  intestate,  is  a  vested  interest,  and  her  right 
attaches  immediately  on  his  death.  But  in  an  action  to  recover  it,  it 
is  not  sufficient  to  establish  her  marriage,  to  prove  that  they  were 
married  by  a  person  generally  reputed  to  be  a  Methodist  preacher. 
Better  and  stronger  evidence  than  general  reputation  is  necessary. 
A  printed  copy,  without  authentication,  of  the  minutes  of  the  Con- 
ference, on  which  his  name  appeared  as  a  minister,  is  not  admissible 
for  this 'purpose;  but  further  proof  that  he  was  received  as  such  a 
minister,  sent  by  the  Methodist  Conference  on  the  circuit,  and  that 
he  served  upon  it  two  years,  administering  the  sacrament  and  other 
ordinances  of  the  church,  and  then  went  to  another  circuit,  in  the 
absence  of  rebutting  evidence,  was  held  sufficient  to  establish  his 
ministerial  character  and  office.  Pettyjohn's  Executor  v.  Pettyjohn, 
332. 

The  testator  by  his  will,  "after  his  just  debts  and  funeral  expenses 
were  paid,  and  his  wife's  thirds  were  taken  out,"  bequeathed  and  de- 
vised certain  portions  of  his  real  estate  and  certain  pecuniary  and 
specific  legacies,  and  also  the  residue  of  his  real  and  personal  estate, 
to  his  two  children.  Held  that  the  wife  was  entitled  to  one-third  of 
the  personal,  as  well  as  one-third  of  his  real  estate  under  his  will, 
after  the  payment  of  his  debts  and  funeral  expenses,  to  be  ascertained 
before  deducting  the  amount  of  the  legacies.  Horsey  and  Wife  v. 
Horsey's  Executors,  438. 

WILLS,  PROBATE  OF. 

The  propounder  of  a  will  on  an  issue  of  devisavit  vel  non  is  to  prove 
the  factum  or  formal  execution  of  it,  and  then  the  reviewers  having 
the  burden  of  invalidating  it,  have  the  opening  and  conclusion  of  the 
argument. 

Proof  of  the  factum  is  not  confined  to  tlrt;  subscribing  witnesses  of 
the  will  merely;  hut  any  other  witness  culled  by  the  propounder  in 
the  first  stage  of  the  case,  will  be  confined  in  his  evidence  to  proof  of 
the  execution  merely. 

An  executor  with  or  without  compensation  for  his  services  as  such 
provided  for  in  the  will,  is  not  a  competent. witness  to  support  the 
will.  Neither  is  a  trustee  appointed  by  the  will  with  a  provision  in  it 
for  a  fair  ami  liberal  compensation  to  him  for  his  services  as  trustee, 
a  competent  witness  to  sustain  the  will. 

Parol  declarations  of  the  testator  as  to  his  testamentary  intentions, 


INDEX.  651 

WILLS,  PROBATE  OF— Continued. 

are  admissible  in  evidence  to  invalidate  an  instrument  propounded  as 
his  will. 

Generally,  the  animus  testandi  is  the  natural  and  primary  inference 
from  the  act  of  signing  and  the  formal  publication  of  the  instrument 
as  a  will ;  but  this  inference  may  be  rebutted  by  any  attending  cir- 
cumstances of  sufficient  force  to  repel  it — as  by  evidence  of  the  weak- 
ness and  incapacity  of  the  testator  to  make  a  will,  or  of  the  absence  of 
intention  on  his  part  actually  to  do  what  he  seems  to  do  by  the  act. 
Proof  therefore,  satisfactorily  made  of  instructions  given  for  drawing 
the  will — of  his  declarations  of  intentions  as  to  his  testamentary  dis- 
positions— of  his  known  affections,  or  dislikes — of  the  position  and 
quality  of  his  estate — of  his  previous  testamentary  intentions,  in- 
structions, or  actual  dispositions — of  the  physical  condition  and  in- 
firmities of  the  testator  at  the  time  of  making  the  will,  and  especially 
of  the  organs  called  into  action  in  making,  or  understanding  it, — all 
these  are  proper  subjects  of  consideration  on  the  important  question 
whether  the  paper  propounded  as  a  will,  does,  or  does  not  contain  the 
real  testamentary  intentions  and  wishes  of  the  party  who  signed  it, 
and  whether  he  had  knowledge  of  its  contents  when  he  executed  it. 

The  party  setting  up  the  will,  must  prove  that  it  was  made  as  a  will 
and  with  a  will,  by  a  party  capable  of  making  It  and  that  he  knew  its 
contents;  but  it  is  not  necessary  to  prove  that  the  will  was  actually 
read  over  to,  or  by  the  testator,  if  there  be  other  evidence  sufficient 
to  satisfy  the  jury  that  he  was  acquainted  with  its  contents.  A  blind 
man  may  make  a  will,  and  a  valid  will  may  be  drawn  by  a  person 
taking  a  beneficial  interest  under  it;  but  the  blindness  of  the  testator 
and  the  interest  of  the  person  drawing  and  attending  to  the  execution 
of  it,  are  circumstances  which  should  admonish  the  jury  to  scrutinize 
the  evidence  offered  to  prove  the  testator's  knowledge  of  its  contents. 
The  law  presumes,  in  general,  that  the  will  was  read  by,  or  to  the 
testator.  But  if  evidence  be  given  that  the  testator  was  blind,  or  in- 
capable from  any  cause  of  reading  it,  or  if  a  reasonable  ground  be  laid 
for  believing  that  it  was  not  read  to  him,  or  that  there  was  fraud,  or 
imposition  of  any  kind  practised  upon  the  testator,  it  is  incumbent  on 
those  who  would  support  the  will,  to  meet  such  proof  by  evidence,  and 
to  satisfy  the  jury,  either  that  the  will  was  read,  or.  that  its  contents 
were  known  to  the  testator. 

The  strict  meaning  of  the  term  onus  probandi  is  this,  that  if  no  evi- 
dence is  given  by  the  party  on  whom  the  burden  is  cast,  the  issue 
must  be  found  against  him.  In  all  cases  this  onus  is  imposed  on  the 
party  propounding  the  will;  but  it  is  in  general  discharged  by  proof 
of  capacity  and  the  fact  .of  execution;  from  which  the  law  assumes, 
or  infers  knowlodg'e  of  and  assent  to.  the  contents  of  the  will  on  the 
part  of  tlie  testator;  and  the  simple  fact  that  the  party  who  prepared 
the  will  takes  it  beneficial  interest  under  it,  does  not  of  itself  create  a 
contrary  presumption  and  call  upon  the  Court   to   pronounce  against 


652  INDEX. 

WILLS,  PROBATE  OF— Continued 

the  will,  unless  additional  evidence  is  produced  to  prove  the  know- 
ledge of  its  contents  by  the  deceased.  It  is  at  best  but  a  suspicious 
circumstance  merely,  of  more  or  less  weight,  according  to  the  facts  of 
each  particular  case;  but  in  no  case  amounting  to  more  than  a  cir- 
cumstance of  suspicion  demanding  vigilant  care  and  circumspection, 
and  calling  for  full  and  entire  satisfaction  on  the  part  of  the  Court 
that  the  instrument  did  express  the  real  intentions  of  the  deceased. 
Nor  is  it  necessary  in  all. such  cases,  even  where  the  testator's  capacity 
is  doubtful,  that  the  precise  species  of  evidence  of  the  deceased's 
knowledge  of  the  will,  should  be  in  the  shape  of  instructions  for,  or 
reading  over  the  instrument. 

Instructions  for  a  will,  being  generally  but  heads,  or  suggestions, 
the  proper  amplification  of  them  in  the  more  formal  instrument  is 
right;  but  if  substantial  variations  are  introduced,  the  jury  must  then 
judge  from  the  evidence,  whether  the  deviations  were  mado  with  the 
knowledge  and  consent  of  the  testator.  If  they  were  not  made  known 
to  him — if  the  will  was  not  read  over  by,  or  to  him,  or  its  contents 
and  variations  from  the  instructions,  were  not  otherwise  explained  to 
him,  then  it  will  not  be  his  will;,  but  if  he  knew  of  the  alterations, 
then  he  approved  and  adopted  them  by  the  execution  of  the  will,  and 
the  same  ought  to  be  confirmed.  The  same  remark  will  apply  gene- 
rally, to  all  declarations  made  by  a  testator  in  relation  to  what  was  to 
be,  or  what  had  been  inserted  in  his  will.  If  the  testator  had  know- 
ledge of  the  contents  of  the  will,  such  declaration  cannot  be  allowed 
to  controvert  the  more  solemn  expression  of  his  intention  contained 
in  the  will  itself;  but  in  the  absence  of  such  other  evidence  of  know- 
ledge of  its  contents,  and  considered  solely  with  a  view  to  the  question 
whether  the  will  was  ever  read,  or  explained  to  him,  declarations 
satisfactory  proved  to  have  been  deliberately  made  by  him  in  good 
faith,  of  testamentary  dispositions  altogether  different  from  the  dis- 
positions in  the  will,  will  be  evidence  to  disprove  the  testator's  know- 
ledge of  its  actual  contents.     Davis  et  al.  v.  Ropers,  44. 

After  trial,  and  the  verdict  of  a  jury  against  the  validity  of  a  will 
on  an  issue  of  deoisavit  vel  non,  ordered  by  the  Register,  he  cannot 
order  a  second  issue  upon  it. 

An  appeal  from  the  order  of  the  Register  directing  an  issue  of 
devisavit  vel  non  to  bo  tried  before  a  jury  at  the  bar  of  the  Court,  is 
a  supersedeas  of  all  further  proceedings  thereon  until  the  appeal  is 
determined. 

On  appeal  from  the  order  of  the  Register  awarding  a  second  issue 
of  derisavit  vel  non,  after  trial  and  the  verdict  of  a  jury  against  the 
validity  of  the  will  on  a  former  issue  ordered  by  him,  the  Court  will 
nut  enter  a  final  decree  against  the  will,  or  such  final  decree  as  the 
Register  should  have  made  under  the  circumstances;  but  will  reverse 
the  order  and  remand  the  case  to  be  further  proceeded  in  by  him. 
Dans  v.  Rogers,  183. 


INDEX.  653 

WILLS,  PROBATE  OF— Continued. 

The  formal  execution  of  a  will  being  established,  the  presumption 
of  law  is  in  favor  of  the  capacity  of  the  testator  to  make  it. 

Testable  capacity  in  a  testator  amounts  to  nothing  more  than  a 
knowledge  of  what  he  was  about  and  how  he  was  disposing  of  his 
property,  and  the  purpose  so  to  do  it,  when  he  made  the  will.  The 
pimple  question  therefore  is,  did  the  testator  know  and  understand 
what  he  was  about  when  he  made  the  will ;  that  he  had  a  family,  and 
the  relation  in  which  he  stood  to  it,  a,nd  that  he  had  property,  and 
what  it  was,  and  a  will,  or  desire  to  devise  it  as  disposed  of;  if  so, 
then  it  is  his  will. 

"What  degree  of  influence  will  vitiate  a  will  t  Cordrey  v.  Cordrey, 
269. 

The  costs  of  the  executor  in  defending  the  validity  of  the  will 
allowed  him  out  of  the  estate,  although  the  will  was  set  aside. 
Browne,  Executor  of  Davit,  v.  Rogers,  458. 

WILLS,  CONSTRUCTION  OF. 

1.  When  a  devise  or  bequest  is  to  children,  or  to  brothers  and  sisters 
generally,  as  a  class,  without  mentioning  them  individually  by  name, 
and  the  time  appointed  in  the  will  for  the  possession  or  distribution 
of  the  property  is  deferred  until  after  the  death  of  the  testator,  or  is 
dependent  upon  a  future  contingency  which  does  not  occur  until  after 
his  decease,  it  will  embrace  all  the  children,  or  all  the  brothers  and 
sisters,  or,  in  other  words,  all  the  objects  who  compose  the  class  in 
being  when  the  contingency  happens,  or  the  appointed  period  for  the 
enjoyment  or  distribution  of  the  property  arrives,  whether  born  be- 
fore or  after  the  death  of  the  testator.  But  this  is  only  a  rule  of  legal 
or  judicial  construction  for  the  interpretation  of  such  devises,  and  is 
therefore  subject  to  the  intention  of  the  testator  to  the  contrary,  when 
so  indicated  in  the  will  itself;  as  where  the  devise  is  to  the  children, 
or  to  the  brothers  and  sisters  then  living,  or  to  such  as  may  be  born 
before  the  testator's  death,  or  he  has  indicated  his  intention,  either 
by  naming  a  part  of  them  or  in  some  other  way,  to  limit  and  restrict 
the  benefits  of  the  devise  to  a  portion  of  the  general  class  only,  the 
rule  is  otherwise,  and  such  as  are  named  or  thus  indicated  will  alone 
be  included  in  the  devise. 

The  testator  had  devised  certain  portions  of  his  real  or  personal 
estate  individually  and  by  name  lo  his  several  grandchildren  living 
at  the  date  of  his  will,  and  then  added,  "In  case  I  should  have  any 
grandchildren  or  grandchild,  born  between  the  date  of  this  will  and 
my  death,  I  give  and  bequeath  to  every  such  grandchild  so  born,  on 
attaining  the  age  of  twenty-one  years,  the  sum  of  five  hundred  dol- 
lars ;"  and  in  a  subsequent  item  of  the  will  lie  added  :  ''In  case  any 
of  my  grandchildren  hereinbefore  named,  or  referred  t<>,  shall  die 
before  the  age  of  twenty-one  years  without  leaving  issue,  then  the 
share  or  portion  of  the  grandchild  so  dying  to  go  to  his  or  her  .-ur- 
viving  brothers  and    sisters,  to  be   equally  divided    between   them." 


654  INDEX. 

WILLS,  CONSTRUCTION  OF— Continued. 

One  of  the  grandchildren  in  being  at  the  date  of  the  will,  and  named 
in  it,  died  without  issue  after  the  death  of  the  testator.  Held,  that 
such  of  his  brothers  and  sisters  only  as  were  born  before  the  death  of 
the  testator  could  take  any  share  in  the  portion  of  the  estate  so  devised 
to  him  by  the  testator.     Doe  d.  Ingram  et  al.  v.  Oirard  et  al.,  276. 

2.  The  testator,  by  his  will,  devised  to  each  of  his  five  children  by 
name,  portions  of  his  real  estate  in  severalty  for  life,  remainder  to 
the  children  of  each  in  tail,  in  the  parts  so  devised  to  his  children, 
subject  to  the  proviso,  that  if  any  one  or  more  of  his  said  children 
should  die  without  leaving  lawfully  begotten  child  or  children,  then 
he  gave  and  devised  the  lands  and  premises  so  devised  to  such  child 
or  children  as  should  happen  to  die  as  aforesaid,  unto  the  survivor  or 
Burvivors  of  his  said  children,  during  their  natural  life ;  and,  after 
their  decease,  he  gave  and  devised  the  lands  and  premises  as  aforesaid 
to  the  child  or  children  of  such  survivor  or  survivors  lawfully  begot- 
ten of  their  bodies  forever,  of  any  of  his  children  who  might  be  dead, 
leaving  such  child  or  children,  such  child  or  children  claiming  such 
part  or  share,  as  the  parent  or  parents  of  such  child  or  children  would 
have  claimed  if  living,  to  be  equally  divided  between  his  surviving 
child  or  children  as  aforesaid  and  the  child  or  children  of  any  that 
may  be  dead,  claiming  the  right  of  their  parent  or  parents  as  if 
living,  share  and  share  alike,  as  tenants  in  common,  and  not  as  joint- 
tenants,  and  to  the  respective  heirs  as  aforesaid  forever;  and  he 
further  provided  that  it  was  his  will,  desire,  vand  intention,  that  if  the 
whole  of  his  children  should  die  without  leaving  lawful  child  or  child- 
ren, or  legal  descendants  of  such  child  or  children,  so  that  the  whole 
of  the  lawful  issue  of  his  own  body  should  become  extinct,  then  and 
in  such  a  case  he  devised  the  remainders  and  reversions  of  his  whole 
estate  over  to  other  persons.  The  lessor  of  the  plaintiff'  was  the  son 
and  only  child  of  Richard,  a  deceased  son  of  the  testator.  "William 
H.,  another  son  of  the  testator,  died  without  leaving  lawful  issue, 
leaving  his  brother,  Ignatius  T.,  to  survive  him,  and  who  was  now 
the  sole  survivor  of  the  testator's  five  children  and  original  devisees  ; 
and  this  action  was  brought  by  William  T.,  the  son  of  Richard, 
against  Ignatius  T.,  to  recover  his  share  of  the  lands  and  premises 
devised  by  the  testator  to  bis  son,  William  H.  Held,  that  the  lands 
and  premises  devised  to  William  II.  by  the  testator,  on  his  death 
without  leaving  children  lawfully  begotten  of  his  body,  under  the 
limitations  of  the  will,  survived  to  Ignatius  T.,  the  sole  surviving 
child  of  the  testator,  for  the  term  of  his  life,  and  that  the  plaintiff 
could  not  recover. 

The  words  "survivor  or  survivors"  do  not  mean  other  <>r  others; 
and  were  not  to  he  so  construed  in  a  devise  of  this  nature.  Doe  d. 
Cooper  v.  Toionsend  et  al.,  305. 

3.  As  a  general  rule  a  party  is  entitled  to  interest  on  account  of 
delay  in  the  payment  of  the  principal  sum  or  debt;  and  in  respect  to 


INDEX.  655 

WILLS,  CONSTRUCTION  OF— Continued. 

legacies  it  is  well  settled  that  interest  is  payable  on  them  only  from 
the  time  when  they  become  actually  due. 

Specific  legacies,  or  bequests  of  a  corpus,  which  in  contemplation  of 
law  are  considered  as  severed  from  the  bulk  of  the  testator's  property 
by  the  will  itself,  carry  their  product  or  interest  from  the  testator's 
death  along  with  the  principal,  and  go  to  the  legatee,  unless  the 
will  contains  directions  to  the  contrary.  But  general  pecuniary  lega- 
cies, where  no  time  of  payment  is  appointed  by  the  testator,  are  not 
due  and  payable  until  one  year  after  his  death,  and  do  not  bear  interest 
until  after  the  expiration  of  that  time. 

With  respect  to  general  pecuniary  legacies,  when  the  time  of  pay- 
ment is  named  by  the  testator,  there  is  no  general  rule  better  settled 
than  that  such  legacies  do  not  carry  interest  before  the  arrival  of  the 
appointed  time  of  payment,  notwithstanding  the  legacies  are  vested. 
There  are  certain  exceptions  to  this  rule,  however,  to  be  found  in 
cases  where  the  legatee  is  a  child  of  the  testator,  or  one  towards  whom 
he  has  placed  himself  in  loco  parentis,  or  where  from  the  terms  of  the 
will  it  is  manifest  the  testator  intended  the  legatee  should  have  the 
interest  accruing  on  the  legacy  before  the  time  of  payment.  In  the 
absence  of  such  intention  expressed  in  the  will,  or  clearly  implied 
from  its  terms,  the  legacy  does  not  in  the  meantime  bear  interest. 

In  the  case  of  a  child  of  the  testator,  or  one  towards  whom  he 
stands  in  the  place  of  a  parent,  interest  is  given  in  the  meanwhile 
upon  the  legacy  by  way  of  maintenance,  where  the  child  has  no  other 
provision  ;  for  it  is  not  to  be  presumed  that  the  parent  in  such  a  case 
was  so  regardless  of  the  moral  obligations  resting  upon  him  as  to 
leave  the  child  in  the  meantime  in  a  state  of  destitution.  Cases  of 
intention  apparent  in  the  will  to  give  the  intermediate  interest  from 
the  death  of  the  testator  speak  for  themselves.  Something  must  be 
said  in  the  will  that  shows  such  intention  ;  otherwise  such  interest 
cannot  be  allowed. 

Bequests  of  the  u residue"  are  also  properly  distinguishable  from 
the  ordinary  cases  of  general  pecuniary  legacies  payable  infuturo;  for 
a  bequest  of  the  residue,  although  made  payable  infuturo,  carries  the 
interest  in  the  meantime  to  the  legatee. 

But  the  bequests  in  question  present  the  ordinary  case  of  vested 
legacies  payable  at  a  future  day ;  namely,  when  the  nephew  should 
arrive  at  the  age  of  twenty-one  years,  and  the  nieces  at  the  age  of 
eighteen  ;  who  are  not  children  of  the  testator,  nor  persons  towards 
whom  he  stood  in  loco  parentis  in  his  lifetime,  and  not  being  residuary 
legatees,  and  there  being  no  direction  or  provision  in  the  will  from 
which  it  can  be  reasonably  inferred  that  the  testator  designed  to  give 
them  the  interest  accruing  thereon  in  the  meantime,  they  cannot  take 
it ;  but  the  same  would  go  to  the  residuary  legatee.  Custis  and  Wife  v. 
Potter's  Administrator,  'SH'2. 

4.   A  devise  to  a  son  of  the  testator  of  a  farm  or  tract  of  land  bv  his 


656  INDEX. 

WILLS,  CONSTRUCTION  OF—  Continued. 

paying  a  grandson  of  the  testator  two  hundred  and  fifty  dollars  with- 
out interest,  when  he  shall  arrive  at  the  age  of  twenty-one  years, 
which  the  said  farm  shall  be  bound  for,  to  him  the  said  son  and  his 
heirs  forever,  but  if  the  said  son  should  die  leaving  no  lawful  heir  of 
his  body  who  shall  arrive  to  the  age  of  twenty-one  years,  then  the 
farm  with  the  aforesaid  condition,  the  testator  willed  and  bequeathed 
to  the  remainder  of  his  sons  then  living,  without  words  of  inheritance 
or  limitation,  is  a  devise  in  fee  both  to  the  first  devisee  and  to  the  re- 
maindermen, because  of  the  charge  upon  them  in  respect  of  the  farm, 
of  a  gross  sum  to  be  paid  to  the  testator's  grandson. 

A  general  devise  without  words  of  inheritance,  or  limitation,  car- 
ries but  a  life  estate  to  the  devisee;  but  this  rule  being  one  of  techni- 
cal restriction,  is  subject  to  the  following  exceptions  :  If  there  be  no 
residuary  devise  in  the  will,  and  the  intention  of  the  testator  clearly 
appears  to  dispose  of  the  whole  of  his  estate,  a  general  devise  will  be 
enlarged  to  a  fee  to  carry  out  that  intent,  if  it  can  be  applied  to  the 
devise  in  question.  Where  the  testator  uses  terms  which  apply  to  his 
interest  in  the  land,  and  not  merely  to  the  land  itself,  a  general  de- 
vise of  such  interest  will  carry  a  fee,  if  such  was  his  interest  in  the 
premises;  as  when  he  devises  his  "estate"  at  such  a  place;  his 
"right,"'  or  his  "part"  of  an  estate  held  with  others,  or  his  "share," 
referring  to  his  interest  and  not  to  the  co?-jm.s  of  the  property.  But 
where  the  term  employed  applies  more  properly  to  the  land  itself, 
than  to  his  interest,  or  estate  in  it,  a  general  devise  carries  but  a  life 
estate;  as  in  a  devise  of  "my  house,"  or  "farm,"  or  "part  of  my 
house,"  "farm,"  or  "plantation,"  at  such  a  place.  If,  however,  there 
be  a  charge  on  the  devisee  in  respect  of  the  land  devised  to  him,  and 
not  merely  a  charge  on  the  land  itself,  it  will  enlarge  the  general  de- 
vise to  a  fee;  for  otherwise,  the  devise  might  prove  injurious  to  the 
devisee.  The  devise  above  stated,  falls  under  this  hist  exception,  and 
makes  the  devise  over  on  the  happening  of  the  contingency  men- 
tioned, to  the  remaining  sons  of  the  testator  then  living,  a  devise  in 
fee,  and  consequently  is  an  absolute  defeat  of  the  estate  first  given  to 
the  son  in  the  preceding  devise,  which  the  Court  construed  to  be  a 
devise  f>  him  in  fee  simple,  defeasible  on  his  death  without  lawful 
heir  of  his  body  who  should  attain  full  age,  with  an  executory  devise 
over  in  fee  to  the  remainder  of  the  sons  of  the  testator  then  living. 

In  another  item  of  his  will,  the  testator  devised  to  his  two  sons,  N. 
and  K.  a  tract  of  land,  to  them  and  their  heirs  forever,  but  if  either, 
or  both  of  them  should  die  leaving  no  lawful  heir  of  their  body  who 
should  arrive  to  tin-  age  of  twenty-one  years,  then  the  part  <>r  parts 
of  the  aforesaid  tract  of  land,  he  willed  and  bequeathed  to  the  re- 
mainder of  his  sons  then  living.  In  another  item  of  his  will  he  de- 
vised to  his  son  J.  a  lot  of  ground  containing  thirty-live  or  forty 
acres,  to  him  and  his  heir.->  forever,  hut  if  the  said  .1.  should  die.  leav- 
ing ii"  lawful  heir  of  his  bod v  who  >hoiild  arrive  to  the  aire  of  t went  v- 


INDEX.  657 

WILLS,  CONSTRUCTION  OF— Continued. 

one  years,  he  willed  and  bequeathed  the  said  lot  to  the  remainder  of 
his  sons  then  living;  and  in  another  item  he  devised  to  his  sons  S. 
and  H.  his  home  farm,  to  have  possession  after  the  death  of  their 
mother,  to  them  and  their  heirs  forever,  and  then  added,  "I  also 
direct  my  said  sons  S.  and  H.  to  pay  my  grandson  J.  L.  five  hundred 
dollars  without  interest,  when  he  shall  arrive  to  the  age  of  twenty- 
one  years,  for  which  the  said  farm  shall  be  bound;  but  if  either  or 
both  of  them  should  die  having  no  lawful  heir  of  their  body  who 
shall  arrive  to  the  age  of  twenty-one  years,  then  the  part  or  parts  of 
the  aforesaid  farm,  I  will  and  bequeath  to  the  remainder  of  my  sons 
then  living."  The  residuary  clause  of  the  will  was  as  follows:  "I 
will  and  bequeath  all  the  balance  of  my  estate  after  my  just  debts  are 
paid,  to  be  divided  among  my  heirs  as  the  law  directs."  Held,  that 
the  construction  of  these  three  items  of  the  will  was  equally  governed 
by  the  principles  before  stated,  and  that  they  each  contained  a  devise 
to  the  first  devisees  in  fee  conditional,  with  an  executory  devise  for 
life  to  the  devisees  over.  As  to  the  question  what  became  of  the 
ultimate  interest  in  the  premises  after  these  life  estates  were  deter- 
mined, it  was  held  by  a  majority  of  the  Court  that  the  limitations  to 
the  first  devisees,  being  in  fee  conditional  and  defeasible,  the  execu- 
tory devises  over  for  life  on  the  happening  of  the  contingencies  upon 
which  they  were  limited  over  to  the  remaining  sons  of  the  testator 
then  living,  absolutely  defeated  them  and  were  in  total  and  not  par- 
tial exclusion  of  the  same;  that  it  could  not  be  considered  that  they 
were  in  derogation  merely  of  the  preceding  devises  in  fee  to  the  first 
takers  and  only  impaired  and  abridged  their  estates  pro  tanto,  and  on 
the  expiration  of  the  life  estates  limited  over,  the  lands  reverted  in 
fee  to  the  heirs  at  law  of  the  first  devisees;  on  the  contrary,  the 
limitations  over  for  life  on  the  contingencies  specified,  were  in  entire 
defeasance  of  the  preceding  devises  in  fee  conditional,  and  on  the 
determination  of  the  life  estates  so  limited  over,  the  premises  passed 
under  the  residuary  devise  in  the  will  to  the  heirs  at  law  of  the  testa- 
tor.    Doe  d.  Harrington  v.  Dill,  398. 

5.  The  testator,  by  his  will,  devised  all  his  Jands  to  his  wife  during 
widowhood,  with  authority  to  cut  timber,  and  use  the  land  as  she  saw 
proper,  and  to  sell  and  convey  any  part  of  them,  excepting  not  less 
than  four  hundred  acres  to  the  farm  whereon  he  lived,  which  he 
willed  not  to  be  sold  during  her  widowhood,  or  the  minority  of  their 
youngest  child.  He  also,  in  a  subsequent  item  of  his  will,  empowered 
her,  by  her  last  will  and  testament,  to  ''devise  the  estate,  both  real 
and  personal,  to  their  children  or  their  proper  heirs,  as  she  might 
deem  right  and  equal  in  her  best  judgment,  which  should  be  final." 
Jlelit,  that  this  did  not  confer  power  on  the  wife  to  devise  the  four 
hundred  acres  in  the  home  farm  to  her  executors  to  be  rented  during 
the  minority  of  the  youngest  child,  and  then  to  be  sold  by  them,  and 

43 


658  INDEX. 

WILLS,  CONSTRUCTION  OF— Continued, 

converted  into  money,  to  be  invested  for  the  benefit  of  the  children. 
Doe  d.  Davis  v.  Vincent,  416. 

6.  The  testator  by  his  will,  "after  his  just  debts  and  funeral  ex- 
penses were  paid,  and  his  wife's  thirds  were  taken  out,"  bequeathed 
and  devised  certain  portions  of  his  real  estate  and  certain  pecuniary 
and  specific  legacies,  and  also  the  residue  of  his  real  and  personal 
estate,  to  his  two  children.  Held,  that  the  wife  was  entitled  to  one- 
third  of  the  personal,  as  well  as  one-third  of  his  real  estate  under  his 
will,  after  the  payment  of  his  debts  and  funeral  expenses,  to  be  ascer- 
tained before  deducting  the  amount  of  the  legacies.  Horsey  and  Wife 
v.  Horsey's  Executors,  438. 

7.  In  a  will  which  contained  the  following  residuary  bequest: 
"And  all  the  rest  of  my  estate  after  my  just  debts  are  paid,  to  be 
equally  divided  among  all  my  grandchildren  of  my  five  daughters, 
named  J.  V.,  wife  of  T.  V.,  and  R.  R.,  wife  of  J.  R.,  and  A.  T.,  wife 
of  D.  T.,  and  E.  H.,  wife  of  J.  H.,  and  N.  W.,  wife  of  D.  W.,  the 
money  to  be  paid  by  my  executors  when  they  arrive  at  lawful  age." 
Held,  that  the  grandchildren  in  being  at  the  death  of  the  testator, 
only  were  entitled  to  the  residue,  and  that  a  child  of  one  of  the 
daughters  named,  born  after  the  death  of  the  testator,  could  not  be 
let  in  to  participate  in  the  benefits  of  the  bequest;  the  period  of  dis- 
tribution being  fixed  by  import  of  the  bequest  at  the  time  of  his  death, 
and  the  period  of  payment  or  enjoyment,  only  being  postponed  until 
they  should  arrive  at  lawful  age.     Richardson  v.  Raughley,  5*51. 

8.  A  will  made  by  a  citizen  of  the  State,  in  the  State,  contained  the 
following  provision:  "  If  at  any  time  my  executor  and  trustee  herein 
named  shall  find  it  necessary  to  relinquish  this  executorship  and  trust, 
and  the  management  of  the  estate  herein  intrusted  to  him,  it*  is  then 
my  desire  that  the  Orphans'  Court  of  the  City  and  County  of  Phila- 
delphia shall  name  a  suitable  person  as  an  executor  and  trustee  in  his 
place;  and  I  do  hereby  appoint  the  person  so  named  to  be  in  that 
event  my  executor  and  trustee."  The  executor  and  trustee  named  in 
the  will  renounced  and  refused  the  office;  upon  which  the  Orphans' 
Court  for  the  City  and  County  of  Philadelphia  named  another  citizen 
of  Philadelphia  as  a  suitable  person  as  an  executor  and  trustee  in  his 
place,  to  whom  letters  testamentary  were  afterwards  granted  as  the 
executor  of  the  will,  by  the  Register  for  New  Castle  County.  Held, 
that  the  grant  of  letters  testamentary,  thus  made  to  him  as  executor 
of  the  will,  was  valid  and  legal,  and  that  it  was  not  necessary  and 
proper  that,  instead  of  letters  testamentary,  letters  of  administration 
cum  testamento  annexo  should  have  been  issued  to  him  by  the  Register. 
State  use  of  Davis'  Executor  v.  Rogers,  .ri7<>. 

0.  The  Legislature  has  no  power  to  authorize  or  direct  the  sale  and 
conversion  of  real  estate'  into  personalty,  devised  by  a  testator  in  per- 
petuity and  trust  to  a  charity;  although  the  act  is  conceived  in  a 
friendly  spirit  towards  the  object  of  the  trust,  and  with  a  design  to 


INDEX.  659 

WILLS,  CONSTRUCTION  OF— Continued. 

render  the  fund  more  productive  and  effectual  for  the  purpose*  of  the 
charity  contemplated  by  the  testator.     Tharp  v.  Fleming,  680. 

WITNESS. 

1.  Proof  of  the  factum  is  not  confined  to  the  subscribing  witnesses 
of  the  will  merely ;  but  any  other  witness  called  by  the  propounder 
in  the  first  stage  of  the  case,  will  be  confined  in  his  evidence  to  proof 
of  the  execution  merely. 

2.  An  executor  with,  or  without  compensation  for  his  services  as 
such  provided  for  in  the  will,  is  not  a  competent  witness  to  supr  j  ' 
the  will.  Neither  is  a  trustee  appointed  by  the  will  with  a  provision 
in  it  for  a  fair  and  liberal  compensation  to  him  for  his  services  as 
trustee,  a  competent  witness  to  sustain  the  will.  Davis  et  al.  v. 
Rogers,  44. 

3.  An  officer,  who  had  received  money  on  an  execution  and  de- 
livered it  to  another  person  to  be  paid  to  the  plaintiff  without  his 
order,  is  not  a  competent  witness  to  prove  the  delivery  of  the  money 
to  such  person,  in  an  action  by  the  plaintiff  against  him  for  money 
had  and  received  to  his  use.     Hosea  v.  Kinney,  141. 

4.  In  an  action  of  replevin  to  recover  goods  taken  in  execution  on  a 
fi.  fa.  issued  against  two  parties,  lately  trading  together  as  partners, 
and  levied  on  the  goods  of  a  third  person  as  a  partner  with  one  of  the 
defendants  in  the  execution,  the  other  defendant  is  not  a  competent 
witness  to  prove  the  interest  and  partnership  of  his  co-defendant  in 
the  goods.     Davis  v.  White,  228. 

5.  A  widow's  interest  in  the  one-third  of  the  residue  of  her  hus- 
band's personal  estate,  who  dies  intestate,  is  a  vested  interest,  and 
her  right  attaches  immediately  on  his  death.  But  in  an  action  to  re- 
cover it,  it  is  not  sufficient  to  establish  her  marriage,  to  prove  that 
they  were  married  by  a  person  generally  reputed  to  be  a  Methodist 
preacher.  Better  and  stronger  evidence  than  general  reputation  is 
necessary.  A  printed  copy,  without  authentication,  of  the  minutes 
of  the  Conference,  on  which  his  name  appeared  as  a  minister,  is  not 
admissible  for  this  purpose;  but  further  proof  that  he  was  received  as 
such  a  minister,  sent  by  the  Methodist  Conference  on  the  circuit,  and 
that  he  served  upon  it  two  years,  administering  the  sacrament  and 
other  ordinances  of  the  church,  and  then  went  to  another  circuit,  in 
the  absence  of  rebutting  evidence,  was  held  sufficient  to  establish  his 
ministerial  character  and  office.  Pettyjufui  s  Executor  v.  Pettyjohn, 
332. 

G.  A  mere  possibility  that  a  witness  may  gain  or  lose  by  the  result 
of  the  suit,  will  not  affect  his  competency.      Clearer  v.  Ogle,  453. 

7.  The  attorney  and  counsel  of  one  of  the  parties  to  a  suit,  is  not  a 
competent  witness  for  him,  although  he  lias  since,  by  leave  of  the 
Court,  withdrawn  from  the  suit,  and  is  no  longer  connected  with  the 
case  as  counsel  for  the  party,  as  to  any  fact  which  came  to  hi.-  know- 
ledge during  that  connection.      Andrews  v.  Thompson,  o-2. 


660  INDEX. 

WRIT  OF  ERROR. 

A  writ  of  error  will  lie  to  an  order  of  the  Superior  Court  awarding 
a  peremptory  writ  of  mandamus,  though  not  a  judgment  at  common 
law,  under  the  provision  of  the  Constitution  which  confers  upon  the 
Court  of  Errors  and  Appeals  "jurisdiction  to  issue  writs  of  error  to 
the  Superior  Court,  and  to  determine  finally  all  matters  in  error  in 
the  judgments  and  proceedings  of  said  Court;"  which  extends  and 
applies  to  judgments  and  decisions  in  any  proceedings  in  the  latter 
Court  of  a  final  character.      Union  Church  v.  Sanders,  100. 

Judgment  was  recovered  in  the  Superior  Court,  on  which  an  exe- 
cution was  issued  to  the  sheriff  and  a  levy  made  by  him  on  the  de- 
fendant's goods  to  the  amount  of  the  debt  and  costs.  Afterwards,  but 
before  sale  of  the  goods,  the  defendant  sued  out  a  writ  of  error  and 
gave  security,  on  which  the  judgment  was  affirmed  in  the  Court  of 
Errors  and  Appeals,  and  judgment  of  affirmance  duly  entered  in  the 
Court  below.  Held,  that  the  writ  of  error  was  a  supersedeas  of  the 
fi.  fa.  and  levy  on  the  original  judgment  in  the  Court  below,  and  that 
a  subsequent^?,  fa.  issued  on  the  judgment  of  affirmance,  and  levy 
and  sale  was  regular.     Pettyjohn  v.  Bloxom,  594. 

WRONGFUL  DETENTION. 

When  the  plaintiff  in  an  action  of  replevin  relies  only  on  a  wrong- 
ful detention  of  the  property,  it  is  quite  as  necessary,  in  general,  that 
he  should  prove  a  demand  and  refusal  in  order  to  establish  the  wrong- 
ful detention,  as  it  is  to  establish  a  conversion  of  the  property  in  an 
action  of  trover.     Windsor  v.  Boyce,  605. 


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